Massachusetts Immigration Lawyer Blog

Kong Xin Chen is free!

Wed, 29 Feb 2012 15:36:09 -0500

Deportation Defense of Kong Xin Chen

Kong's arrest and the prospect that he could be deported has visibly shaken his community in Marshfield, Massachusetts, drawing the attention of the Boston Globe, the Quincy, MA Patriot Ledger and other Massachusetts newspapers. Kong's case has earned the sympathy of state and congressional representatives and prompted his community to rally around him. His supporters have created a Free Kong Now Website, organized a fundraiser to help support his family and flooded my office with heartbreaking letters of support.

This afternoon I got off the phone with Kong's brother and he told me the amazing news: U.S. Immigration and Customs Enforcement has released Kong from jail! Very soon, he should be back in Massachusetts reunited with his family, friends and supporters, all of whom must be ecstatic at this wonderful and unexpected news.

While Kong's immediate release is certainly something to celebrate, the legal battle to stop his deportation and to gain immigration status in the United States is far from over.

Here's some background on what happened and why. U.S. Immigration and Customs Enforcement released Kong on his own recognizance (without requiring an immigration bond) under what is known as an Order of Supervision. Kong's release didn't come about because of my exceptionally brilliant legal work. And it doesn't mean that Kong got any sort of special treatment from the immigration system. Instead, he was released as part of the standard custody review protocol that ICE is required to follow for all non-criminal immigration detainees who, like Kong, are subject to final orders of removal or deportation. After returning to Massachusetts, as a condition for his release, Kong will be required to report in periodically at the ICE office in Burlington.

An Order of Supervision means that Kong is free for the time being but it doesn't directly confer any immigration status. It's just an alternative to detention and a temporary reprieve from a certain fate. In other words, while immigration authorities are arranging travel documents so that can be Kong forcibly deported from the United States, he will not have to remain in jail.

Even though he is free from jail, without further legal advocacy, Kong can still be deported at any moment. As part of our deportation defense strategy, the next steps, as I see it, are to request that the Department of Homeland Security exercise favorable prosecutorial discretion in several forms. First, we will ask the Office of Chief Counsel in New York, New York to consider filing a joint motion to reopen his deportation order in Immigration Court. Next, we will ask U.S. Immigration and Customs Enforcement, Enforcement and Removal Operations, Boston Field Office in Burlington, Massachusetts to grant deferred action, as well as a stay of deportation.

For all of you who care about Kong and his family, for fans of Mandarin Tokyo restaurant, once the celebrating is over, I urge you to redouble your efforts. Keep doing whatever it is that you've been doing.

Stopping the deportation of Kong Xin Chen

Mon, 13 Feb 2012 12:09:22 -0500

Many concerned friends in the Marshfield, Massachusetts community and fans of Mandarin and Tokyo restaurant have contacted me and asked me for information on Kong's immigration / deportation case and what they can do to help. As Kong's immigration and deportation defense lawyer, on my immigration blog I explained earlier the legal predicament that Kong is in and why a detailed letter of support is the best way to help him out.

Now, we are preparing a formal request to the attorneys from the U.S. Immigration and Customs Enforcement that they review Kong's case in light of recently issued prosecutorial guidelines and that they consider joining Kong in a motion to reopen his in absentia deportation order. Since Kong has an order of removal or deportation from an Immigration Court in New York (not Boston), our request must go to the New York office of U.S. Immigration and Customs Enforcement.

Here are some relevant question about this deportation case:

Once we have requested that the attorneys from U.S. Immigration and Customs Enforcement reopen Kong's order of removal, can we also simultaneously request an immigration bond hearing so that an Immigration Judge could release Kong from custody? Unfortunately, we can't. Kong's isn't eligible to ask for bond because right now he has a final order of removal or deportation, which is why reopening this order is our first step.

Where would an immigration bond hearing taking place? If--and only if--the Immigration Court decides to reopen his case, Kong's bond hearing would likely be in Alabama, which is where he is currently detained. And at that point there would be no way to get the Immigration Court to hold a bond hearing in Boston Immigration Court.

Will Kong remain in jail for a bond hearing? Yes. For the time being, Kong is legally required to remain in the custody of U.S. Immigration and Customs Enforcement unless or until (a) his order of deportation or removal is reopened (b) Kong successfully requests immigration bond and (c) someone pays his immigration bond.

Can we request to get Kong back in a Massachusetts immigration jail? If Kong's order of removal or deportation is reopened, then we can request that he be released on the payment of an immigration bond. After bonding out, we could request a change of venue to move his deportation case to Immigration Court in Boston, Massachusetts. Unfortunately, right now, with a final order of removal, Kong has no legal basis to demand that he be moved to a jail in Massachusetts.

Are you filing the motion to reopen based on him not getting proper notice? No. I've closely reviewed Kong's file in Immigration Court and based on my reading of his proceedings, the record shows that Kong's former lawyer had adequate notice of the hearing but, through miscommunication with his lawyer, Kong did not. Kong's lack of actual notice will be a discretionary factor in our request for a joint motion to reopen. But because his lawyer did have notice of the hearing, Kong, in my professional opinion, could not successfully move to reopen his deportation order based exclusively on his lack of notice. And it would be extremely difficult for Kong to pin the blame on his former lawyer since these events took place more than a decade ago. This is why I believe that the best strategy is to seek a joint motion to reopen.

Once we have submitted our formal request for a joint motion to reopen Kong's case, how long will it take for attorneys for U.S. Immigration and Customs Enforcement to make a decision on our request? My understanding is that it typically takes their office 90 days to make a decision on such discretionary requests. And, again, there would be no way to get Kong released from custody while our request is being considered.

I heard that since Kong has been in the United States for more then 10 years he can automatically file for a hearing in Immigration Court without reopening his order of deportation or enlisting the cooperation of attorneys for U.S. Immigration and Customs Enforcement. Is this true? No, it's not. Kong doesn't have the legal right to reopen his case based on his presence in the United States for 10 years or more.

One final point: Since Kong has a final order of removal or deportation, he could be returned to his own at any moment and without advanced notice. If he were to be returned, it would be extremely difficult--maybe impossible--to get him back to the United States legally. My understanding of immigration laws is that a joint motion to reopen would not automatically serve as a stay of deportation. But common sense tells me the attorneys for U.S. Immigration and Customs Enforcement wouldn't agree to reopen his order of deportation, while deporting him at the same time.

Prosecutorial Discretion and Motion to Reopen Request for Kong Xin Chen

Mon, 13 Feb 2012 10:29:57 -0500

Prosecutorial Discretion and Joint Motion to Reopen

To the friends of Kong Xin's family and supports of the Mandarin Tokyo restaurant in Marshfield, Massachusetts, thank you for agreeing to help with a letter of support. As the immigration lawyer who is preparing Kong Xin's deportation defense case, I'm writing to give you some background on his case and to offer guidance on how to make your letter of support have as much impact as possible.

Kong Xin is currently in jail in the custody of U.S. Immigration and Customs Enforcement because he has a in absentia order of removal or deportation from more than ten years ago. Kong Xin was ordered to be deported at a hearing he didn't attend. Through miscommunication with his former lawyer, Kong Xin missed his hearing because he never had actual notice of the time and date of the hearing.

Even though Kong Xin is married to a U.S. citizen and has U.S. citizen children, he cannot apply for a green card because he has this existing order of removal or deportation. To removal this obstacle, he needs the Immigration Judge to reopen his deportation order, which would allow him to apply for a green card through marriage and request a hearing that may allow him to be released upon the payment of an immigration bond.

As Kong Xin's immigration lawyer, I believe that the best strategy is to ask attorneys for the Department of Homeland Security to join Kong Xin in requesting that the Immigration Judge reopen his case. You may have heard in the news that the Obama Administration recently issued new guidelines for prosecutorial discretion in deportation cases. The stated goal is to prioritize the deportation of criminals, while treating more favorably those who present positive equities. Along these lines, we are asking attorneys from U.S. Immigration and Customs Enforcement to reopen Kong Xin's case out of the goodness of their hearts.

In support of our request, we would like a letter from you explaining why you believe the Department of Homeland Security should join Kong Xin in making this request. It is important for your letter to be based on your own personal experience and to be as detailed as possible. Your letter should address the following:

1. Discuss your relationship with Kong Xin. Describe how you met him, how long you have known him, and under what circumstances you interact with him. Please give examples from your own personal experience showing that Kong Xin is a good person who takes care of his family and contributes to his community.

2. Describe the extreme hardship that Kong Xin's wife and children would face if he were deported to China. While Kong Xin would certainly suffer, it is much more important to explain how Kong Xin's U.S. citizen family would suffer if he were deported.

3. Describe how important Kong Xin is to you and your community and how his forced deportation and possible absence would negatively impact you and the community at large.

Make sure your letter includes your name, address, and whether you are a citizen or legal permanent resident of the United States. Your letter should be addressed to "Dear Sir or Madam" at:

U.S. Department of Homeland Security
Office of District Counsel
26 Federal Plaza - Room 1237
New York, New York 10278

Re: Request for Joint Motion to Reopen In Absentia Order of Removal
Kong Xin CHEN, A073-649-669
Detained

Do NOT send your letter directly to the Department of Homeland Security. Please send it to me by February 15, 2012 or as soon as possible thereafter. I will submit your letter, along with others, in a packet of other documentation. Your letter should be dated and signed in ink. Above your signature, please include the words: "Under the pains and penalties of perjury, I declare that this statement is true and correct to the best of my information and belief." Notarizing your signature would be helpful but is not essential or required.

Please feel free to email me if you have any questions. On behalf of Kong Xin and his family, I would like to thank you in advance for your help and cooperation.

Finally, at least for the time being, I do NOT recommend that you call a Massachusetts politician (e.g., Senator Scott Brown, Congressman Bill Keating) or alert the media. Our first and most important effort should be gathering as many high quality letters of support as possible. After we submit our formal request for prosecutorial discretion, we can shift our focus to media and congressional assistance.

I will be posting more information on Kong Xin's case as soon as I know more.

Deportation Defense Success Story in Boston Immigration Court

Fri, 02 Sep 2011 20:00:01 -0500

Boston Immigration Court News

This week, I had a detained deportation trial in Boston Immigration Court. My client, a permanent resident who had lived in the United States for over twenty years, was facing deportation to Pakistan, a country where he knew no one and didn't speak the language. He entered Boston Immigration Court in chains and an orange jumpsuit and walked out of court knowing that he would soon be a free man and a could continue his life in the U.S. with this green card.

Allow me to explain how I won the case:

The Department of Homeland Security had arrested my client and detained him at the Plymouth County House of Correction in Plymouth, Massachusetts. Interestingly, my client was arrested in Connecticut but because Hartford Immigration Court has not detained docket, he was transferred to a facility in Massachusetts so that his deportation trial could be placed on the docket of Boston Immigration Court. In Boston, Immigration Judge Steven Day exclusively handles the detained docket for all deportation cases in all of New England (Connecticut, Rhode Island, Vermont, Connecticut, Massachusetts and New Hampshire).

My client was facing the prospect of being deported because of a criminal case that had concluded many years before. Initially, Immigration and Customs Enforcement charged my client with having a criminal conviction that was classified as "aggravated felony." But, after I reviewed the record of conviction (especially the plea colloquy), I realized that, in fact, he had pled guilty to a divisible statue. This means that he was convicted of a statute that included several different offense, some of the included offenses were aggravated felonies, while others were not.

Based on this research, I successfully challenged Immigration and Custom's Enforcements' allegation that my client had an aggravated felony conviction. This was a crucial victory because even though my client was still deportable, by eliminating the aggravated felony conviction, my client became eligible for relief in the form of cancellation of removal for certain lawful permanent residents.

Cancellation of removal is essentially a way of asking the Immigration Judge for a second chance. The standard is a balancing of the equities where the Immigration Judge weighs a range of factors including the severity of the applicant's criminal offense, the recency of the criminal record, the hardship imposed by a possible deportation, as well as any other positive or negative equities.

In support of my client's application for cancellation of removal, I prepared a detailed affidavit of his proposed testimony in Immigration Court. This gave my client an opportunity to tell his life story. Most importantly, he explained why he was unlikely to have problems with the law in the future. And, at the end of the deportation hearing, Boston Immigration Judge Steven Day granted the application for cancellation of removal, a hard won victory for my client.

If you or someone you know is facing deportation and needs and aggressive and effective attorney for representation in Boston Immigration Court, please call me. I'd be happy to review your case and help out outline a winning deportation defense strategy.

Marriage-based green card interview in Boston? You need to know about this new procedure

Tue, 05 Jul 2011 21:13:00 -0500

Boston Green Card Lawyer News

If you live in Massachusetts and are seeking a green card based on marriage, U.S. Citizenship and Immigration Services has a new way of conducting adjustment of status interviews.

At issue is whether the marriage is based on a relationship that the couple entered into for genuine, bona fide reasons. Traditionally, an immigration officer would conduct the marriage-based green card interview by sitting down together with the husband and wife together at the same time. The officer would question the couple and try to figure out whether the relationship was genuine or fraudulent.

Now, the new procedure is to interview the husband and wife separately starting with the visa petitioner (U.S. citizen). The immigration officer asks both the husband and the wife the same question in separate interviews. There are no wrong answers--only same or different. The separate interviews are now standard procedure at USCIS Boston and Lawrence District Offices for all marriage-based green card adjustment of status cases.

As an immigration lawyer, my experience with the separate marriage-based green card interviews has been fairly positive. The questions seem reasonable, fair and designed to weed out marriage fraud and to make sure that the couple really know each other well, as any genuinely couple would.

I can offer you three general pieces of advice: first, make sure that you and your spouse know each other well. Don't hide important but potentially embarrassing personal information such as a divorce or a criminal history from your spouse. To get your green card, your husband or wife will need to know everything there is to know about you. The immigration process is not the time for secrets.

Second, if an immigration officer asks you a question, don't respond with a guess. If you don't know the answer, just say that you don't know! If you guess and your answer doesn't line up with your spouse's answer, the officer could conclude that your marriage is not based on a genuine relationship. If so, your immigration case could be referred to USCIS fraud unit and, eventually, be denied.

Third, hire an good immigration lawyer! I work with clients who are seeking a green card through marriage to prepare thoroughly or the adjustment of status interviews. I've handled countless cases and can help you fix problems before the immigration interview.

For more information about the marriage based green card process, please call my Boston immigration law office at 617-722-0005. I'd be happy to help.

Boston Immigration Court welcomes Steven Day as its new Immigration Judge

Fri, 11 Mar 2011 17:36:32 -0500

Boston Immigration Court News

Boston Immigration Court has announced the appointment of a new Immigration Judge. Steven Day, a retired Marine and former appellate attorney with the Office of Immigration Litigation, will be filling the vacancy created when Immigration Judge Francis Cramer retired. As with custom, Immigration Judge Steven Day will complete in-house training program at for immigration judges and then serve temporarily at Immigration Court in Newark, New Jersey. Immigration Judge Steven Day is expected to begin hearing deportation cases in Boston starting in April.

In another big personnel change, Immigration Judge Eliza Klein will be leaving Boston Immigration Court and has accepted a transfer to the Chicago Immigration Court. This is a transfer she had requested. She will arrive in that Immigration Court during July. So, with Judge Klein's departure, it remains to be seen who will fill this vacancy on the bench in Boston Immigration Court.

USCIS Boston District Office is moving from the JFK Federal Building to South Boston

Tue, 08 Mar 2011 19:47:21 -0500

It's official for immigration lawyers in Boston: the Boston Globe is reporting that U.S. Citizenship and Immigration Services (USCIS) will be moving from the JFK Federal Building to South Boston. More precisely, the immigration office will be at 5 Channel Center, a building in the Fort Point Channel area of South Boston that used to be artist studios. The move will take place in 2012.

How to get Italian citizenship and other immigration questions that I have no idea how to answer

Tue, 08 Feb 2011 10:11:16 -0500

I consider myself to be an effective immigration lawyer. Want a green card? I can show you the options and assess your chances. Have some complicated legal issues but still interested in applying for naturalization to be a U.S. citizen? Or do you need an attorney to represent you in Immigration Court? I can help.

But, as I'm an immigration lawyer in Boston, sometimes I get downright stumped. Here are some frequently asked questions that I have no idea how to answer:

My grandparents/great grandparents/great great grandparents were born in Italy/Ireland. How do I, as a U.S. citizen, obtain Irish/Italian citizenship? The answer is . . . I don't know! I'm a U.S. immigration lawyer but don't know about the laws of foreign countries.

Where can I find a lawyer who can advise me about how U.S. citizens can obtain Irish/Italian citizenship? Again, I don't know the answer. But to find legal advice on issues of Italian or Irish law, I'd look for a lawyer based in Dublin, Milan, etc.

Would it be possible for me to leave the U.S., enter Canada and apply for immigration status there? I love Canada--everyone does. I just don't know anything about Canadian law. For advice on Canadian immigration law, look for a lawyer in Toronto, Montreal, etc.

At the airport, I was refused entry into the U.K. This was unfair. Can you help me do something about it? Again, as a U.S. lawyer, I can't advise you on issues of U.K. law.

The common thread, of course, as that I can only answers questions about U.S. immigration law. Few, if any, lawyers based in the U.S. are licensed to practice in and experts on immigration laws in foreign countries.

So I welcome your questions on topics within my area of expertise--green card, work permits, citizenship and Immigration Court. Just make sure your questions relate to U.S. immigration law.

If you use an immigration lawyer, will USCIS suspect that something is wrong with your immigration case?

Mon, 07 Feb 2011 21:23:00 -0500

Green Card Lawyer Boston

At a meeting in my immigration law office in Boston, a potential client recently asked me this question:

I'm interested in hiring an immigration lawyer to prepare my green card case. But is it risky to use an immigration lawyer? I'm concerned that if USCIS sees that I have an immigration lawyer, the immigration officer might get suspicious. By using an immigration lawyer, perhaps the officer will presume that my case has some problem or issue.

The notion that an immigration officer will suspect that your case has some problem simply because you have hired an immigration lawyer is utter nonsense--a complete myth. Everyone has the legal right to be represented by an immigration lawyer of their own choosing. In my experience, using an immigration lawyer never generates suspicion that your case has a problem.

Anyone can fill in your name and address on an immigration form. But only an experienced, effective immigration attorney can spot issues before they crop up. If you decide to prepare your immigration case on your own, without an immigration lawyer, you do so at your own peril. You may think that you don't need an immigration lawyer because you assume that your case is easy. But without an immigration lawyer, you can't be sure that you've seen all the relevant issues. You might need a complicated immigration waiver and not even know it!

So, you now know that if you need help with an immigration issue, you can feel free to hire me or consult with me without fear of reprisal!

Boston Immigration Court and USCIS Boston--closed because of snow

Tue, 01 Feb 2011 15:55:24 -0500

Boston Deportation Lawyer

Immigration lawyers in Boston like me might be in the office but snow is closing Immigration. Specifically, USCIS Boston District Offices and the USCIS Offices in Lawrence, Massachusetts, Bedford, New Hampshire and Johnston (Providence), Rhode Island and Portland, Maine have canceled interviews and InfoPass appointments for tomorrow (February 2, 2011) due to snow and bad weather

Boston Immigration Court will close at 4:00 PM today, February 1, 2011 and will also close on Wednesday, February 2, 2011 for the entire day. Please don't call the Immigration Court in Boston immediately to check on your rescheduled hearing. Give the clerks time to work with their Immigration Judges in Boston to reschedule your immigration case before you call for a new court date. Boston Immigration Court will re-open on February 3, 2011 at 8:00 AM.

Stay tuned for any updates on immigration closings . . . and, of course, stay warm and safe.

Boston Immigration Court delays opening because of snow

Wed, 26 Jan 2011 16:36:07 -0500

Boston Deportation Defense Lawyer News

Immigration lawyers in Boston have received notice that, because of anticipated snow emergency, Boston Immigration Court will delay opening the court until 10:00AM on January 27, 2011. Anyone who has a hearing in Immigration Court should report at that time to determine the status of their immigration case.

If the snow worsens and Boston Immigration Court decides to close, I'll be sure to update this blog. Meanwhile, you can call the Boston Immigration Court weather line at 617-565-3080, x299.

INFOPASS at USCIS Boston District Office

Mon, 17 Jan 2011 11:23:35 -0500

Boston Green Card Lawyer

As an attorney who routines files green card, citizenship and other immigration cases with U.S. Citizenship and Immigration Service (USCIS), I love INFOPASS. INFOPASS offers the best way to communicate with USCIS. Don't waste your time with USCIS National Customer Service Center 800# (800-375-5283). And USCIS's online case status system tends to be inaccurate. But INFOPASS works well.

USCIS Boston District Office, in a policy change, will now only meet with those who have scheduled an INFOPASS appointment online through the website of USCIS. The Boston immigration office will longer take walk-ins, except for emergencies. What constitutes an emergency? A supervisory will make that call in on a case-by-case basis.

Here are a few other points about USCIS INFOPASS:

INFOPASS is not substitute for an effective immigration lawyer. The immigration officers in Boston have the best of intentions and are well-trained. But INFOPASS isn't designed for those seeking legal advice.

Don't go to INFOPASS if you think that you might be out of status. If you have overstayed your visa or failed to maintain your student status, then you could be arrested or placed in removal or deportation proceedings if immigration officers discover your violations.

I find INFOPASS most useful for checking the status of a pending immigration case or for solving other problems with USCIS.

If you need help with an immigration case, please call me in my Boston immigration law office at 617-722-0005.

Boston Immigration Court and USCIS will be closed on January 12, 2011

Tue, 11 Jan 2011 17:23:23 -0500

Boston Deportation Defense Lawyer News

Boston Immigration Court, USCIS Boston District Office and other immigration agencies in and around Massachusetts, which are listed below, have announced closures tomorrow, January 12, 2011. Any scheduled appointments/appearances are canceled. Also, USCIS immigration office closures include the ASC fingerprint appointments as well.

Boston Immigration Court /EOIR Boston;
USCIS Boston District Office;
USCIS Lawrence, Massachusetts;
USCIS Manchester, New Hampshire;
USCIS Providence, Rhode Island; and
USCIS Portland, Maine.

Also, the JFK Library Naturalization / Citizenship Ceremony at 12 noon tomorrow is canceled and will be rescheduled. If you need immigration help, or have questions about an immigration issue, please call me in my Boston office at 617-722-0005.

Boston Immigration Court closed on Monday

Mon, 27 Dec 2010 07:38:53 -0500

The Immigration Court in Boston will be closed on Monday (December 27, 2010) due to the snow emergency in Boston. Also, my immigration law office in Boston will be closed on Monday and Tuesday.

I'll send over more information on closings as soon as I receive them. Meanwhile, stay warm and stay off the roads.

deportation cases in Boston immigration Court face long delays

Fri, 26 Nov 2010 12:54:23 -0500

As a Boston-based immigration lawyer specializing in deportation defense, I'm well aware of the Boston Globe reported today here. The docket in Boston Immigration Court is overwhelmed with deportation cases.

So, based on this article, if you are in deportation proceedings, how long can you expect to wait before Boston Immigration Court processes your immigration case? The answer depends on a number of factors. People with no relief from removal or deportation tend to have their cases processed more quickly. The long delays mostly impact people who have application for relief such as cancellation of removal, adjustment of status, or asylum.

To give you an example how these delays play out, in December of 2009, I appeared before an Immigration Court in Boston for a master calendar hearing. I turned in pleadings indicating that I was seeking relief from deportation in the form of cancellation of removal with an I-601 waiver for misrepresentation. An Immigration Judge would likely need three and a half hours for to conduct a full merits hearing. The Immigration Judge scheduled another master calendar hearing in December of 2010, where I'm expected to appear and turn in my application for relief. The Immigration Judge will then schedule an individual hearing, which is a trial date. I expect that this hearing will be in mid-2012.

So for my client, the entire process of seeking relief from deportation in Boston Immigration Court will take more than 3 years. This delay is more than a minor inconvenience. During this time, he is unable to travel outside the United States to see his ailing mother.

One ray of hope is that a new Immigration Judge will replace Boston Immigration Judge Cramer, who retired last summer.