Immigration Law Blog
Battle Creek Immigration Lawyer Blog

Apprehension, Custody, and Detention under Section 236.1:

Posted December 6, 2018

In general. At the time of issuance of the notice to appear, or at any time thereafter and up to the time removal proceedings are completed, the respondent may be arrested and taken into custody under the authority of Form I-200. A warrant of arrest may be issued only by those immigration officers listed in § 287.5(e)(2) of this chapter and may be served only by those immigration officers listed in § 287.5(e)(3) of this chapter. If, after the issuance of a warrant of arrest, a determination is made not to serve it, any officer authorized to issue such warrant may authorize its cancellation.

In General (i) After the expiration of the Transition Period Custody Rules (TPCR) set forth in section 303(b)(3) of Div. C of Pub. L. 104-208 , no alien described in section 236(c)(1) of the Act may be released from custody during removal proceedings except pursuant to section 236(c)(2) of the Act. (Corrected 4/1/97; 62 FR 15362 ) (Revised effective 6/18/98; 63 FR 27441 ) (ii) Paragraph (c)(2) through (c)(8) of this section shall govern custody determinations for aliens subject to the TPCR while they remain in effect. For purposes of this section, an alien "subject to the TPCR" is an alien described in section 303(b)(3)(A) of Div. C of Pub. L. 104-208 who is in deportation proceedings, subject to a final order of deportation, or in removal proceedings. The TPCR do not apply to aliens in exclusion proceedings under former section 236 of the Act, aliens in expedited removal proceedings under section 235(b)(1) of the Act, or aliens subject to a final order of removal. (Corrected by adding (ii) 4/1/97; 62 FR 15362 ) (Revised effective 6/18/98; 63 FR 27441 )

Subject to paragraph (c)(6)(i) of this section, but notwithstanding any other provision within this section, an alien subject to the TPCR who is not lawfully admitted is not eligible to be considered for release from custody. An alien who remains in status as an alien lawfully admitted for permanent residence, conditionally admitted for permanent residence, or lawfully admitted for temporary residence is "lawfully admitted" for purposes of this section.An alien in removal proceedings, in deportation proceedings, or subject to a final order of deportation, and not described in paragraph (c)(2)(i) of this section, is not "lawfully admitted" for purposes of this section unless the alien last entered the United States lawfully and is not presently an applicant for admission to the United States. (Paragraph (c)(2) added effective 6/18/98, previous (c)(2) redesignated as (c)(8); 63 FR 27441 )

Except as provided in this section, or otherwise provided by law, an alien subject to the TPCR may be considered for release from custody if lawfully admitted. Such an alien must first demonstrate, by clear and convincing evidence, that release would not pose a danger to the safety of other persons or of property. If an alien meets this burden, the alien must further demonstrate, by clear and convincing evidence, that the alien is likely to appear for any scheduled proceeding (including any appearance required by the Service or EOIR) in order to be considered for release in the exercise of discretion. An alien, other than an alien lawfully admitted for permanent residence, subject to section 303(b)(3)(A) (ii) or (iii) of Div. C. of Pub. L. 104-208 is ineligible to be considered for release if the alien:

Is described in section 241(a)(2) (C) of the Act (as in effect prior to April 1, 1997), or has been convicted of a crime described in section 101(a)(43)(B) , (E)(ii) or (F) of the Act (as in effect on April 1, 1997);

  • Has been convicted of a crime described in section 101(a)(43)(G) of the Act (as in effect on April 1, 1997) or a crime or crimes involving moral turpitude related to property, and sentenced therefor (including in the aggregate) to at least 3 years' imprisonment;
  • Has failed to appear for an immigration proceeding without reasonable cause or has been subject to a bench warrant or similar legal process (unless quashed, withdrawn, or cancelled as improvidently issued);
  • Has been convicted of a crime described in section 101(a)(43)(Q) or (T) of the Act (as in effect on April 1, 1997);
  • Has been convicted in a criminal proceeding of a violation of section 273 , 274 , 274C , 276 , or 277 of the Act, or has admitted the factual elements of such a violation;
  • Has overstayed a period granted for voluntary departure;
  • Has failed to surrender or report for removal pursuant to an order of exclusion, deportation, or removal;
  • Does not wish to pursue, or is statutorily ineligible for, any form of relief from exclusion, deportation, or removal under this chapter or the Act; or
  • Is described in paragraphs (c)(5)(i)(A), (B), or (C) of this section but has not been sentenced, including in the aggregate but not including any portions suspended, to at least 2 years' imprisonment, unless the alien was lawfully admitted and has not, since the commencement of proceedings and within the 10 years prior thereto, been convicted of a crime, failed to comply with an order to surrender or a period of voluntary departure, or been subject to a bench warrant or similar legal process (unless qu ashed, withdrawn, or cancelled as improvidently issued). An alien eligible to be considered for release under this paragraph must meet the burdens described in paragraph (c)(3) of this section in order to be released from custody in the exercise of discretion.

www.uscis.gov/laws

 

Fingerprints and Photographs under Section 236.5:

Posted November 18, 2018

Every alien 14 years of age or older against whom proceedings based on deportability under section 237 of the Act are commenced under this part by service of a notice to appear shall be fingerprinted and photographed. Such fingerprints and photographs shall be made available to Federal, State, and local law enforcement agencies upon request to the district director or chief patrol agent having jurisdiction over the alien's record. Any such alien, regardless of his or her age, shall be photographed and/or fingerprinted if required by any immigration officer authorized to issue a notice to appear. Every alien 14 years of age or older who is found to be inadmissible to the United States and ordered removed by an immigration judge shall be fingerprinted, unless during the preceding year he or she has been fingerprinted at an American consular office.

www.uscis.gov/laws

 

Requirements to Apply for Naturalization:

Posted October 25, 2018

The process of applying for U.S. citizenship is known as naturalization. In order to be eligible for naturalization, you must first meet certain requirements required by U.S. immigration law. Generally, to be eligible for naturalization you must:

  • Be age 18 or older; and
  • Be a permanent resident for a certain amount of time (usually 5 years or 3 years, depending on how you obtained status); and
  • Be a person of good moral character; and
  • Have a basic knowledge of U.S. government (this, too, can be excepted due to permanent physical or mental impairment); and
  • Have a period of continuous residence and physical presence in the United States; and
  • Be able to read, write, and speak basic English.

There are exceptions to this rule for someone who at the time of filing:

  • Is 55 years old and has been a permanent resident for at least 15 years; or
  • Is 50 years old and has been a permanent resident for at least 20 years; or
  • Has a permanent physical or mental impairment that makes the individual unable to fulfill these requirements.

You may be able to apply for naturalization if you are at least 18 years of age and have been a permanent resident of the United States:

  • For at least 5 years; or
  • For at least 3 years during which time you have been, and continue to be, married to and living in a marriage relationship with your U.S. citizen husband or wife; or
  • Have honorable service in the U.S. military. Certain spouses of U.S. citizens and/or members of the military may be able to file for naturalization sooner than noted above.

www.uscis.gov

 

 

 

 

 

 


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