Immigration Benefits in a Removal Proceeding


Sakima Kelly is a licensed New York and New Jersey attorney, specializing in immigration law, employment law, contract drafting, editing and review and contract negotiation.  Ms. Kelly is the General Counsel of an IT consulting company, located in New Jersey, and she performs pro bono and low bono work through her own company, SK Immigration Solutions.  Currently, she is serving as the American Bar Association Young Lawyers’ Division’s Liaison to the Commission on Immigration. 

Removal proceedings are administrative proceedings that determine whether one will be expelled from the United States in accordance with federal immigration laws.  These proceedings occur under the jurisdiction of the Executive Office for Immigration Review (EOIR), which is a part of the Department of Justice.  Such proceedings are held before the Immigration Court or the Board of Immigration Appeals, both of which fall under the EOIR.  

Those who are eligible for relief from removal or protection while in removal proceedings may apply.  Examples of relief from removal or protection while in removal proceedings are:

·        Adjustment to Permanent Resident Status (Immigration and Nationality Act (“INA”) §245; 8 CFR §1240.11(a))

·        Cancellation of Removal (INA §240A; 8 CFR §240.66)

·        Waiver of Inadmissibility (INA §237(a)(1)(E)(iii), INA §237(a)(1)(H); 8 CFR §1240.11(d))

·        Asylum (INA §208; 8 CFR §1240.11(c))

·        Withholding of Removal (INA §241(b)(3); 8 CFR §1240.11(c))

Many steps must be taken to properly request relief from removal or protection while in removal proceedings.  The United States Citizenship and Immigration Services (USCIS) has prepared a document directed to foreign nationals, as there is no law requiring that such individuals be provided legal counsel.  Nonetheless, knowledge of the procedure is incredibly important for those attorneys representing foreign nationals placed in removal proceedings. 

When filing for relief from removal or protection while in removal proceedings, the attorney representing the government, through the agency of Immigration and Customs Enforcement (ICE), which falls under the U.S. Department of Homeland Security (USDHS), will provide the foreign national with pre-order Instructions for Submitting Certain Applications in Immigration Court and For Providing Biometric and Biographic Information to USCIS.  These instructions include a list of documents and applicable fees to submit as well as where to file.  The instructions also make clear that the attorney for the government must be served with a copy of the application and any supporting documents.

The procedure established in the instructions reflects the EOIR’s regulation that a benefit may not be granted by an Immigration Judge or the BIA before the USDHS reports that the identity, security and background checks of the foreign national are complete.  This was implemented to protect national security and public safety and to ensure a speedier process for those seeking relief or protection.  When required, biometrics collection will be completed at a USCIS service center, unless an applicant is detained, in which case ICE will complete the collection.  A notice for a biometrics appointment is sent within three weeks of USCIS receiving a copy of an application.  The Federal Bureau of Investigation (FBI) and the Interagency Border Inspection System (IBIS) complete the required checks.  Results from the IBIS are available to USDHS within minutes while fingerprint results from the FBI may take up to 48 hours.  Name checks, which are conducted by the FBI, usually take two weeks.  Depending on the case, checks by other government agencies may have to be conducted. 

If relief from removal or protection while in removal is granted and the decision is final, the Immigration Judge or BIA will issue Post-Order Instructions for Individuals Granted Relief or Protection from Removal, or a document similar to such, in order to obtain the required documents that demonstrate that relief or protection has been granted.  For example, if one has been granted Adjustment to a Lawful Permanent Resident or asylum, then an INFOPASS appointment must be scheduled to obtain the Permanent Resident Card or Employment Authorization Document for those granted asylum.  If granted another form of relief and eligible for work authorization, then one must submit Form I-765, Application for Employment Authorization, to USCIS.