In the “News & Insights” section, our attorneys will write about topics ranging from new developments in immigration law to in-depth analysis of recurring issues. We hope that you find the information helpful.
News & Insights
The interruption in government operations between October 1 and 16, 2013 has passed, but some of its consequences continue to affect noncitizens. The most obvious consequence is that immigration court hearings scheduled during that time did not go forward and will need to be rescheduled. Immigration courts across the country have begun to prepare and mail notices rescheduling the cancelled hearings, but these notices may not be delivered to noncitizens who have changed their addresses and failed to notify the proper court.
A noncitizen in immigration court proceedings is required under 8 C.F.R § l003.15(d)(2) to notify the court of any change in address within five days, using Form EOIR-33/IC. The failure of a noncitizen to provide his or her current address could result in a missed hearing notice, and a missed hearing notice could result in a missed hearing. Missing an immigration court hearing can result in an “in absentia” order of removal, because an immigration judge can order a noncitizen removed from the U.S. if the notice of hearing was sent to the last address on file with the immigration court and the noncitizen does not show up to the scheduled hearing.
Form EOIR-33/IC is available at all immigration courts. It is important to follow the instructions on the back of Form EOIR-33/IC when completing it, and to pay attention to the requirement that you provide a copy to the Office of the Chief Counsel, DHS-ICE. A noncitizen should submit Form EOIR-33/IC to the immigration court and one copy to the Office of the Chief Counsel, DHS-ICE. The noncitizen should also keep a copy for his or her own records.
Having an “in absentia” order of removal is very serious. Noncitizens who are ordered removed “in absentia” can be arrested by the U.S. Department of Homeland Security Immigration and Customs Enforcement (ICE) and removed without an opportunity to apply for relief. Section 240 of the Immigration and Nationality Act (INA) states that noncitizens who are ordered removed “in absentia” become ineligible for a variety of immigration benefits for a period of ten years. These benefits include voluntary departure, cancellation of removal, and adjustment of status under Sections 245, 248, or 249 of the INA.
If you are a noncitizen and were scheduled to appear for an immigration court hearing between October 1 and 16, 2013, you may wish to call the immigration court automated hotline at 1-800-898-7180. You can use your “A number” and follow the prompts to find out if a new hearing date has been set in your case. You should also keep in mind that if you were required to check in with ICE after your re-scheduled hearing, it may be necessary to contact your local ICE Office as well to prevent a determination that you have violated the terms of your release and revoke your release from custody. Please note that Form EOIR-33/IC does not notify ICE of a change in your address. If you have been instructed to check in with ICE at a certain time, you are required to notify the ICE Office separately of a change in your address.
In 2000, Congress created the U Visa to be used as a tool for law enforcement. The U Visa can be issued to a noncitizen who is not a lawful permanent resident (green card holder). A noncitizen may be able to apply for the U Visa if he or she: 1) fell victim to a “qualifying” crime; 2) suffered substantial physical or mental harm as a result of the crime; 3) has or had information about the crime; 4) is helping or has helped law enforcement agencies in the investigation or prosecution of the crime; and 5) the crime violated U.S. law or occurred in the U.S. or its territories and possessions.
The immigration law identifies the following crimes as “qualifying” for purposes of the U Visa: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; stalking; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; fraud in foreign labor contracting. The law also allows for crimes “similar” to those listed above, as well as the attempt, solicitation, or conspiracy to commit any of the above-listed or similar crimes.
The rationale behind the creation of the U Visa is the hope that a noncitizen residing in the U.S., whether he or she holds valid immigration status, will report criminal activity to law enforcement agencies and cooperate with law enforcement agencies who investigate criminal activity. A law enforcement agency, prosecutor, or judge must confirm that a U Visa applicant assisted in the investigation or prosecution of the crime. Obtaining this certification from a law enforcement agency is the initial step in the U Visa petition process.
A noncitizen may be eligible to apply for a U Visa even if he or she is ineligible for other immigration benefits or if he or she is in removal (deportation) proceedings or has been previously ordered removed. In conjunction with the U Visa petition, a noncitizen may also apply for a discretionary waiver of inadmissibility.
Proving that a noncitizen suffered substantial harm and persuading the U.S. Citizenship and Immigration Services that the crime was “qualifying” can be challenging. Given the evidence required to demonstrate eligibility for the U Visa, and the evidence required to demonstrate the merit of an accompanying waiver application, it is important that a potential U Visa applicant consult with competent immigration counsel.