BACK TO BACK IMMIGRATION COURT ASYLUM APPROVALS FOR KENYANS

On April 29 and April 30, 2010, Attorney Hamilton conducted consecutive asylum trials in San Diego and Los Angeles, California respectively, for two Kenyan clients. In addition to the merits of the asylum claims, both cases involved the presentation of theories which would excuse the applicants from the legalistic one-year filing requirement which mandates that asylum applicants file their claims within one year of their arrival in the United States. Judge Williams of San Diego presided over and approved the April 29 claim, and Judge Riley of Los Angeles approved the claim tried on April 30, 2010. Mr. Hamilton had represented one of these applicants for over two years and the other for over 5 years in their quests for asylum in the United States. Though lengthy, both clients have expressed their gratitude to the court, the government and to a process through which their freedom has been secured.

Maria Rangel.

HAMILTON WINS REOPENING OF KENYAN ASYLUM WHERE FINAL ORDER OF DEPORTATION AGAINST ALIEN IN PLACE SINCE 2003

On January 29, 2010, the BIA, pursuant to a motion to reopen and remand filed by attorney Hamilton, ordered reopening and remand to immigration court in an old asylum matter in which the native of Kenya had been in removal proceedings since mid 2000 and a final unappealed order of deportation entered against the alien since early 2003. The alien has thus been given a new opportunity to demonstrate her eligibilty for asylum and for any other relief which may be available in immigration court.

MORE NEWS ON OUR MOVE TO FULLERTON

We are happy to announce that we have completed our move to Fullerton. Our new address is 285 Imperial Highway, Suite 207, Fullerton, CA 92835. Our office numbers are (714)441-3400 (phone) and (714)441-3407 (fax). There is still some construction taking place in our new conference room and we have not yet received some of our furniture for the waiting room. Please bear with us as we settle into the new office.

FULLERLTON OFFICE UPDATE

The phone company is telling us that in spite of our opening date of Feb 1, 2010 at our new Fullerton office (as posted on Jan. 6, 2010), the new phone and fax system will not be operational until Feb. 3. Please continue to call us at our existing phone and fax numbers which will remain operational (and which we will continue to answer) until the new numbers are in effect. We will be winding down our affairs in Buena Park through the early part of February as we ramp up in Fullerton. Please don't panic if you cannot get through to the new numbers for a few days. You will be able to reach us.

HAMILTON PREVAILS IN DISMISSAL OF REMOVAL PROCEEDINGS AGAINST ALIEN CONVICTED OF BURGLARY

Attorney Hamilton was awarded a judgement of termination of "Removal Proceedings" today from a Los Angeles, California Immigration Judge (IJ), dismissing said proceedings which have been pending for the past almost two years, against a lawful permanent resident alien, who was alleged to have been convicted of burglary as a felony under California law and was facing deportation on the strength of this allegation. These Immigration Court proceedings involved numerous and sometimes lengthy and contentious court hearings against the Department of Homeland Security (DHS) over the past two years, and a complex series of briefs and oral arguments, in which Hamilton continuously and persistently attacked the charging document against the alien as being facially invalid. Ultimately the IJ found in favor of Hamilton and his client, stating that the Government, in its Notice to Appear, had indeed, not met its burden of sustaining removability against the alien, warranting a complete dismissal of the case, and sparing the alien from deportation and preserving said alien's lawful permanent residence. The Government reserved appeal.

CHOW & HAMILTON ANNOUNCES MOVE TO FULLERTON CALIFORNIA

Chow & Hamilton will be moving its practice as of February 1, 2010, from their present Buena Park location, to a new suite of offices located at 285 Imperial Highway, Ste. 207, Fullerton, CA 92835. The new office's phone number will be (714)441-3400 and the fax number will be (714)441-3407. The firm will be notifying its clients, agencies, courts, vendours and colleagues of this move throughout the month of January. This blog will officially list the new address in its "contact information section" on February 1, 2010.

THE TRANSITION FROM USCIS TO IMMIGRATION COURT

The denial of many types of immigration applications carry the risk of a referral to Immigration Court (IC) Removal Proceedings if the alien is out of status at the time of the denial. For example, the denial of the asylum application of an out of status alien by the USCIS Asylum office, requires that the alien's matter be forwarded to to the IC. The denial of an adjustment of status (green-card application) based upon the out of status alien's marriage to a US Citizen will also often result in referral to IC.

This transition from USCIS to IC is critical, though aliens do not always understand the significance or importance of it. When an alien is referred to IC, the Government prepares a Notice to Appear (NTA), which makes certain allegations against the alien and charges the alien under one or more sections of the Immigration and Nationality Act, of being "removable" from the United States. The NTA also sets a date, time and place of a "Master Calendar Hearing" (which is like an arraignment in criminal court), or notifies the alien that he or she will be informed of the date time and place of the master hearing at a later time. The NTA can be served on the alien in person by an immigration employee, or forwarded to the alien's last known address of record from the alien's file. Should the alien fail to attend the master hearing, the Immigration Judge (IJ) will typically enter an order of deportation against the alien in the alien's absence. The failure to appear in IC and an in absentia deportation/removal order has certain negative consequences to the alien and will strip the alien of eligibility for certain forms of immigration benefits and render the alien inadmissible to the United States for 10 years, should the alien depart the United States.

Hence, an alien who is careless in monitoring his or her mail after the denial of their case by USCIS, or who ignores an NTA, may find him or herself in an extremely weakened position in terms of their ability to receive immigration benefits at a later time. Some aliens decide, after their application has been denied by USCIS, that they will not consult with their attorney again, and will not read their attorney's advisory letters. They will sometimes instead, discuss their circumstances with friends in their community, who advise them, not based upon law, but upon their own speculation. Such aliens will sometimes leave the United States without attending their court proceedings, imagining that the Government will be happy with their departure, and will allow their return to the US once the alien has reason to return. Aliens also sometimes do not appreciate or remember (in spite of the attorney's very careful discussion of the limitations of his services in his fee agreement) that immigration attorneys do not typically commit to representing an alien through all stages of their potential immigration journey, since that journey can often take years and in some cases over a decade to completion. Thus, an attorney who represents an alien in a marriage case, usually has not committed in his fee agreement with the alien, to represent the alien in the IC. Some such attorneys have never appeared in IC and would not be prepared to represent aliens in that forum. Other immigration attorneys with IC experience (such as myself) would require the alien to enter into a new agreement to cover that forum. Hence, if the alien has not re-hired his attorney, or retained some other attorney for court, and fails to appear for the master hearing, there will be no one in court on the alien's behalf at the time of the master hearing to speak for the alien. Where the alien shows up to the master hearing without an attorney, most, if not all IJs will allow the alien some amount of time to retain a lawyer for court. It is always better for the alien to attend court in the company of his or her attorney.

I have had the displeasure of having had to advise some aliens, years after their departures from the United States and after having not heard from them following a denial of their applications by USCIS, that their failure to attend court and request voluntary departure from the IJ would likely prevent them from, or pose serious obstacles to their reentry into the US for many years to come. Some of these aliens would have been eligible for relief in IC which they almost certainly would have been granted, had they simply stuck that process out with proper legal representation.

Aliens must not ignore an NTA and must appear in court. Aliens should also always discuss thoroughly the meaning of a denial of an immigration application and its potential to result in an NTA with an immigration attorney. Aliens must monitor their mail for follow up communications or NTAs from the Government after the denial of an application. Aliens should have an attorney review all such follow up communications or NTAs. Aliens referred to court should hire a qualified and experienced attorney to represent them in court prior to the first hearing in court. Again, regardless of whether the alien hires an attorney or not, he or she must appear in court at all scheduled court hearings, unless the court specifically exempts their appearance.

Duane M. Hamilton, Esq.