Monthly Archives: November 2016

Grant of Motion to Vacate Expedited Removal Order + Rescission of Misrepresentation Charge = A True Success Story

On November 9, 2016 – several hours after Donald Trump gave his acceptance speech as U.S. President-elect – I received a telephone call from the U.S. Customs & Border Protection (CBP) on a Motion to Vacate Expedited Removal Order I had filed on October 31st (only 9 days earlier). I had appealed to the CBP Field Office, which denied my client admission at the U.S. port of entry, to rescind the removal order and the charge that she willfully misrepresented material fact to gain entry into the U.S. as a visitor.

My client sought entry into the U.S. on a valid B1/B2 visitor visa, which she obtained six months before she married her U.S. citizen spouse. Following the marriage in her home country, she and her elderly parents arrived at an international U.S. airport for a temporary visit. Her American spouse also accompanied them on their first trip to the U.S.

Her plan was to tour the U.S. with her parents and get accustomed to the American lifestyle and culture before she returned to her home country to start the marriage-based immigrant visa process. They had return airline tickets to leave the U.S. within two weeks.

At primary inspection, she and her parents presented the proper travel documents (valid passports) and entry documents (unexpired 10-year, B1/B2 visitor visas) to the CBP officer. While her parents were admitted as visitors, she was pulled into secondary inspection.

During secondary inspection, the CBP officer questioned her about the purpose of her trip. She explained the temporary nature of her visit and, while she was reaching for her return airline ticket, the officer took her personal belongings and searched through them.

Among her personal belongings was a folder containing several documents. In the folder, the CBP officer found two letters from an employer in her home country that were contradictory. The first letter stated she had resigned from her position, indicating she was no longer employed. The second letter stated she was on a leave of absence, implying she still had a job.

She immediately clarified that the second letter contained false information and she had in fact resigned from her job. She described her plans to return to her home country on time and later apply for an immigrant visa, based on her marriage to a U.S. citizen.

Instead of allowing her to withdraw her application for admission due to lack of a proper visa, the CBP detained and interrogated her for at least five hours. She was questioned by two CBP officers until her Sworn Statement was taken about eight hours after she arrived at the airport.

Using a Form I-867A & B, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act, the CBP officer documented her testimony in a question and answer format. My client signed the Sworn Statement and initialed each page without fully reading or understanding the contents.

The CBP issued a Form I-860, Notice and Order of Expedited Removal Order, finding her inadmissible, denying her entry, and ordering her expeditiously removed on two counts. The first charge was under INA 212(a)(7)(A)(i)(I), i.e. lack of proper travel documents. The second (and more serious) charge was under INA 212(a)(6)(C)(i), i.e. fraud or willful misrepresentation of material fact to gain admission into the U.S. by presenting a fake letter.

My client was sent back to her country the following day on the next available flight. Her spouse and parents booked airline tickets and returned there as well. A week later, she and her spouse completed a video consultation with me via Skype.

In the consultation, I explained that the expedited removal order, by itself, subjects you to a 5-year bar to reentry. And a charge of fraud/willful misrepresentation under section 212(a)(6)(C)(i) furthers bars you permanently from entering the U.S.

I  described the two main options to immigrate to the U.S. following an expedited removal order with a misrepresentation charge.

Option A is to submit a Motion to Vacate the Expedited Removal Order to the CBP Field Office that issued the order. Because this request is, in essence, a motion to reopen or reconsider to the Service, the CBP must receive it within 30 days of the date of the order.

Option A is available if the applicant has factual grounds and legal claims to challenge the CBP’s determination that she is inadmissible to the U.S. and must be expeditiously removed from the U.S.

Option B is to file an  I-212, application for permission to reapply for admission after removal, to overcome the 5-year bar. Plus file an I-601, application for INA 212(i) waiver of inadmissibility, to be excused from the section 212(a)(6)(C)(i) charge – a permanent bar. Both waivers must be filed in conjunction with the immigrant visa application, and are typically submitted at or after the visa interview.

Option B is available if the applicant meets the eligibility requirements for the I-212 waiver and I-601 waiver. To get the I-212 waiver, the applicant must have favorable factors (e.g. close family ties in the U.S.) that outweigh the unfavorable factors (e.g. bad moral character). To receive the I-601 waiver, the applicant needs a qualifying relative (i.e. U.S. citizen or permanent resident spouse or parent) who will suffer extreme hardship if she is not admitted to the U.S.

The foreign national and her American spouse chose Option A as their primary solution, and Option B as their backup plan. Both options require strong documentary evidence, favorable facts, and persuasive legal arguments for an approval to be possible.

During the next three weeks that followed the consultation, I counseled my client and her spouse on the documentary evidence to gather for the request to vacate expedited removal order. The evidence demonstrated the temporary nature of the planned visit, my client’s ongoing ties to her home country, and her and her spouse’s good moral character.

Furthermore, I reviewed the Sworn Statement and Notice and Order of Expedited Removal Order, the agency’s policy manual, and applicable case law to formulate the strongest legal arguments to support the motion.

In the Motion to Expedite Removal Order, I noted that my client had proper travel documents in the form of an unexpired passport and valid visitor visa. I argued she was not inadmissible under INA 212(a)(7)(A)(i)(I) because it was appropriate for her to travel to the U.S. on a valid B1/B2 visa for a temporary visit, even though she was married to a U.S. citizen.

In addition, I explained why the CBP made an error by making a willful misrepresentation charge under INA 212(a)(6)(C)(i). I pointed out that my client did not affirmatively provide the fake leave of absence letter to the CBP officer, who found it during his search of her personal belongings. I added that even if she had misrepresented a material fact, she timely recanted it by admitting the letter contained wrong information and clarifying she was unemployed in her home country.

I pointed out the CBP should have at least given her the opportunity to withdraw her application for admission, rather than issue an expedited removal order that subjected her not only to a 5-year bar, but also to a permanent bar.

The normal processing time for a Motion to Vacate Expedited Removal Order is 6 months. To my pleasant surprise, it took less than 10 days for CBP to review the motion and make a decision in this case.

Four days after the CBP Field Office received the motion, a CBP officer telephoned me to convey they were taking the request into serious consideration.

On November 9th, which was 9 days after receiving the motion, the Watch Commander at the CBP Field Office called to say he would vacate the expedited removal order and treat the case as a withdrawal of application for admission to the U.S. He noted that my client was no longer barred from entering the U.S.

The foreign national no longer has a 5-year bar to reentry due to the removal order or a permanent bar to reentry due to the willful misrepresentation charge. She now readily qualifies for a marriage-based immigrant visa without needing any waivers of inadmissibility.

The rescission of the removal order and dismissal of the section 212(a)(6)(C)(i) charge means my client will not need an I-212 waiver or I-601 waiver to get the immigrant visa. This will make it significantly easier and faster for her to immigrate to the U.S. (because waiver requests often take 6 to 12 months to be adjudicated).

My client, her spouse and I communicated by Skype, telephone and email. They decided to hire me upon completing the initial video consultation, in which I laid out a strategy and action plan to resolve their immigration predicament.

Although we never met in person, we worked together effectively to create a desired and expeditious outcome. I continue to represent them in their I-130 immigrant petition and immigrant visa process.

The speedy approval of the request to vacate expedited removal order and dismissal of the misrepresentation charge is a true success story in 2016 for Dyan Williams Law PLLC.

I enjoy taking on challenging cases in which foreign nationals seek to enter the U.S. lawfully as an immigrant or nonimmigrant, after they have been found inadmissible or issued an expedited removal order. Getting I-212, I-601 and 212(d)(3) waivers are among my top areas of expertise.

Under the new administration – which begins on January 20, 2017,  and is expected to be more hardline on immigration – lawful entries into the U.S. will be more critical than ever.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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What Should a Lawyer Do to Meet Professional Responsibilities Regarding Nonlawyer Assistants?

A lawyer bears professional responsibilities regarding nonlawyer assistants within and outside the firm. When a nonlawyer assistant engages in conduct that would violate the ethics rules applying to lawyers, the lawyer is answerable under Rule 5.3 of the Minnesota Rules of Professional Conduct (MRPC).

Proper delegation, adequate supervision, and implementation of policies and procedures to discourage misconduct are some steps you must take to meet your duties related to nonlawyer assistants.

What Should a Lawyer Do to Meet Responsibilities Regarding Nonlawyer Assistants?

The buck stops with you. Whether you are the partner or managing lawyer who controls the firm, the lawyer who directly supervises the nonlawyer, or the lawyer who incites or condones misconduct by the nonlawyer, you may be held responsible for a nonlawyer assistant’s wrongful conduct under MRPC 5.3.

Minnesota’s Rule 5.3, Responsibilities Regarding Nonlawyer Assistants, mirrors the ABA Model Rule. It requires you to make efforts to ensure the nonlawyer’s conduct is compatible with the professional ethics rules that apply to lawyers.

Here are reasonable steps you must take to meet your duties related to nonlawyers:

1. Delegate appropriately

Lawyers may delegate certain tasks to paralegals, legal assistants, law clerks, and other nonlawyer assistants to provide legal services at lower cost and deal with high volumes of work. But the lawyer must strive to ensure those tasks are performed diligently, competently, and otherwise in compliance with the ethics rules.

An immigration lawyer, for example, may assign a paralegal to gather documentary evidence from the client, prepare the application forms, and conduct legal research. But the lawyer may not delegate, to a nonlawyer, the duty to advise the client on legal strategy, complete final review of the application forms, and verify or analyze the research.

Proper delegation begins with having appropriate job descriptions for non-lawyers that outline their roles and duties, and the required qualifications, followed by selecting qualified and reputable persons for the job. Background and reference checks are appropriate.

The lawyer should consider the nonlawyer’s education, experience, training and skills when assigning tasks. The lawyer must also provide clear instructions, identify roles and responsibilities, set boundaries, turnaround times and deadlines, and communicate desired goals. A delicate balance between micro-management and abdication of responsibility needs to be struck.

2. Provide adequate supervision

A lawyer’s responsibility does not end with delegation. The lawyer is ultimately in charge of filing pleadings, communicating with clients, responding to discovery requests, and addressing other time-sensitive matters.

Lawyers must follow up with their nonlawyer assistants to confirm assigned tasks are performed competently and diligently. In addition to giving clear instructions at the outset, lawyers need to monitor progress and confirm the tasks are done well.  Lawyers have to review the nonlawyer’s work product and provide guidance in even simple cases.

Delegating inappropriate authority to nonlawyers can open you up Rule 5.3 violations, particularly when there is inadequate supervision. Lawyers must provide the necessary supervision to ensure nonlawyer assistants do not engage in misconduct, such as unauthorized practice of law (MRPC 5.5 violation), prolonged procrastination on client matters (MRPC 1.3 violation), failure to submit required evidence to the court (MRPC 1.1 violation), neglect of client requests for information (MRPC 1.4 violation), and breach of client confidentiality (MRPC 1.6 violation). Adequate supervision is key to deterring nonlawyer misconduct and avoiding disciplinary action under Rule 5.3.

3. Offer regular training and mentorship

Ongoing training and mentorship programs, whether formal or on-the-job, must be offered to nonlawyer assistants. Lawyers should take time to train and mentor paralegals, law student interns, and paraprofessionals to carry out substantive work and perform their duties in alignment with the rules of professional conduct.

Lawyers themselves should keep attending CLEs, completing workshops and reading articles and books on professional ethics to keep their knowledge fresh and stay abreast of changes and developments.

They should also work to build their nonlawyer assistants’ awareness of professional ethics and encourage them to defer legal questions to the lawyers. Leading by example and discussing a lawyer’s ethical duties in group and individual meetings are critical.

Providing checklists for routine tasks and templates for common cases is a key part of training. But the training does not end there. Rather, lawyers should constantly educate nonlawyer assistants through constructive comments on their work, execution of office protocols and procedures, and teaching them the difference between working efficiently and taking harmful shortcuts.

While lawyers should train nonlawyer assistants to take initiative, they also need to caution them against unauthorized practice of law. For example, an immigration lawyer’s assistant must be reminded to communicate just the lawyer’s explanation, instead of adding her own advice and recommendations, when acting as an interpreter.

Lawyers ought to take remedial measures when they observe nonlawyer assistants breaching professional obligations. No matter how experienced a paralegal, receptionist, secretary or office manager might be, the lawyer cannot take ongoing training for granted.

4. Prioritize professional ethics through the establishment of firmwide systems and protocols

The partner or managing lawyer must implement policies, procedures and practices to help ensure the nonlawyer’s conduct is compatible with lawyers’ professional duties. The firm should also have a systematic approach in dealing with ethics violations and mitigating the consequences.

The distribution of an ethics manual, provision of ongoing training, and formal establishment of protocols addressing diligence, competence, client confidentiality, conflicts of interest, client file requests, trust account issues, unauthorized practice of law and other professional obligations are reasonable measures to be taken.

An office handbook or memorandum outlining telephone etiquette, email exchanges, and other client communication and confidentiality issues is paramount. Identifying the lawyers and nonlawyers assigned to the case in an engagement letter, fee agreement or client correspondence is recommended.

Be sure to read our related article, When Does a Lawyer Breach Professional Responsibilities Regarding Nonlawyer Assistants? 

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.  

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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When Does a Lawyer Breach Professional Responsibilities Regarding Nonlawyer Assistants?

A lawyer may be subject to an ethics investigation and disciplinary action based on the conduct of nonlawyers employed or outsourced by the lawyer. When your paralegal or other nonlawyer assistant engages in wrongful conduct, such as breach of client confidentiality and unauthorized practice of law, you may be held responsible under Rule 5.3 of the Minnesota Rules of Professional Conduct (MRPC).

What Are a Lawyer’s Responsibilities Regarding Nonlawyer Assistants? 

Minnesota’s Rule 5.3, Responsibilities Regarding Nonlawyer Assistants, mirrors the ABA Model Rule. MRPC 5.3 requires you to make efforts to ensure the nonlawyer’s conduct is compatible with the professional ethics rules that apply to lawyers.

With respect to a nonlawyer employed or retained by or associated with a lawyer, Rule 5.3 applies to the following lawyers:

Partner. Rule 5.3(a), MRPC, states that a partner “shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.”

Rule 5.3 (c)(2), MRPC, further states that a partner is responsible for a nonlawyer’s conduct that would violate the rules (if engaged in by a lawyer) when the partner “knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”

Rule 1.0(h), Terminology, defines a partner as “a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.”

Lawyer, who individually or together with other lawyers, has managerial authority. MRPC 5.3(a) and (c)(2) also apply to lawyers with “comparable managerial authority [to partners] in a law firm.” These are lawyers who, similar to partners, manage and control the firm.

Lawyer with direct supervisory authority over the nonlawyer. MPRC 5.3(b) states, “a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” These are lawyers, such as senior associates, who are not necessarily partners or managers, but still have  “direct supervisory authority” over the nonlawyer.

Lawyer who orders or ratifies the nonlawyer’s misconduct. MPRC 5.3(c)(1) states that a lawyer is responsible for a nonlawyer’s conduct that would violate the rules (if engaged in by a lawyer) when “the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved.”

When Does a Lawyer Breach Responsibilities Regarding Nonlawyer Assistants? 

Delegating work to non-lawyers, such as law student interns, secretaries, investigators, and paraprofessionals is common and expected in law firms. It is difficult for lawyers to run their firms, serve clients, respond to prospects, market their practice, and collect fees without assistance from non-lawyers.

But responsibilities related to nonlawyer assistants may be found to be breached in the following situations:

Partner or Lawyer With Comparable Managerial Authority fails to take reasonable measures to ensure the firm reasonably discourages misconduct. MRPC 5.3(a). 

Under Rule 5.3(a), partners and managing lawyers who fail to implement reasonable policies, procedures and practices to deter nonlawyers from engaging in misconduct may be investigated and disciplined when such misconduct occurs.

MRPC 1.0 (i), Terminology, defines “reasonable” or “reasonably” as “conduct of a reasonably prudent and competent lawyer.” Partners and managing lawyers who do not act reasonably under the circumstances, with respect to preventing misconduct by nonlawyers, may be subject to discipline.

Partners and managing lawyers who fail to establish checks and balances, instill and promote a firm culture, and provide training that encourage compliance with a lawyer’s ethical duties open themselves up to disciplinary action when nonlawyers engage in wrongful conduct.

They may be investigated, for example, when there are no policies and practices that prohibit nonlawyers from divulging confidential information obtained during the attorney-client relationship, working on matters in which they have a conflict of interest, providing legal advice on a client matter, and signing pleadings on behalf of a lawyer.

Partner, Lawyer With Comparable Managerial Authority, or Supervising Lawyer fails to take reasonable remedial measures when they learn about the misconduct at a time when the consequences can be avoided or mitigated. MRPC 5.3 (c)(2).

Rule 5.3(c)(2) subjects partners and managing lawyers to investigation and discipline if they fail to take reasonable steps to correct a nonlawyer’s misconduct when they know of it at a time when the impact can be warded off or reduced.

MRPC 1.0(g), Terminology, defines “knows” as “actual knowledge of the fact in question. ” MRPC 5.3(c) applies only when the nonlawyer engages in misconduct and the lawyer is actually aware of it or should have been aware of it. The lawyer is not liable if he did not consciously avoid knowledge of the nonlawyer’s misconduct or if the nonnlawyer concealed the misconduct.

But MRPC 1.0(g) further states, “A person’s knowledge may be inferred from circumstances.” A lawyer with constructive knowledge – i.e. he should have known if he had take reasonable care – is just as liable as one with actual knowledge.

Partners and managing lawyers who fail to intervene and stop the nonlawyer’s misconduct, when they become aware of it at a time when the consequences can be avoided or mitigated, do so at their own peril.

For instance, a partner or managing lawyer who failed to adequately screen nonlawyers from working on a particular client matter and, after learning about a conflict of interest, does not take any corrective measures, such as getting the client’s consent or pulling the paralegal from the case assignment, may be disciplined.

Supervising Lawyer fails to  make reasonable efforts to prevent misconduct. MRPC 5.3(b). 

Rule 5.3(b) subjects supervising lawyers to investigation and discipline when they fail to make reasonable efforts to ensure the nonlawyer’s conduct is compatible with the lawyer’s professional duties.

Lawyers with “direct supervisory authority” who fail to adequately supervise the nonlawyer who engages in misconduct are vulnerable to disciplinary action. Failure to carry out proper delegation, offer adequate training, do necessary follow-ups and provide adequate supervision to ensure obligations are met, through nonlawyers, is a dereliction of duties.

Mere reliance on the existence of office policies, procedures and practices is not sufficient to comply with Rule 5.3(b). Neglecting to provide ongoing training, monitoring and review may amount to breach of this rule.

Lawyer orders or condones the misconduct. MRPC 5.3(c)(1). 

A lawyer who directs a nonlawyer’s misconduct, or ratifies the misconduct after becoming aware of it, is answerable to discipline under Rule 5.3 (c)(1).

A lawyer who orders the misconduct or approves of it cannot hide behind reasonable preventive measures that have been implemented at the law firm.

Any lawyer who directs a nonlawyer to engage in acts that would be considered a violation of the lawyer’s professional duties not only violates Rule 5.3(c)(1), but may also be found liable under Rule 8.4(a), which states “It is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”

Examples of a Rule 5.3(c)(1) violation include instructing a notary public at the firm to notarize a client’s affidavit when the client did not appear before the notary public; allowing secretaries to sign pleadings on behalf of the lawyer; and encouraging paralegals to make legal recommendations to the client. Saving time or trying to meet deadlines or client demands is no excuse for violating this rule.

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Rule 5.3 relates to nonlawyers within the firm, including secretaries, investigators, law student interns, and paraprofessionals – whether employees or independent contractors – acting for the lawyer in rendition of legal services. See MRPC 5.3, Comment 2. It also relates to nonlawyers outside the firm assisting the lawyer in providing legal services, such as an investigative or paraprofessional service, a document management company to create and maintain a database for complex litigation, a third party that prints and scans client documents, and an Internet-based service to store client information. See MRPC 5.3, Comment 3.

Partners and managing lawyers must make reasonable efforts to ensure the firm has implemented measures to keep nonlawyers’ conduct compatible with the lawyer’s professional obligations. They, along with supervising lawyers, must take appropriate remedial action when they know (or should know) about a nonlawyer’s misconduct. Supervising lawyers also need to provide adequate oversight to prevent misconduct. All lawyers must avoid ordering, or ratifying with knowledge, any nonlawyer’s conduct that is not consistent with the lawyer’s professional obligations.

Be sure to read our related article, What Should a Lawyer Do to Meet Professional Responsibilities Regarding Nonlawyer Assistants? 

# # #

This article provides general information only. Do not consider it as legal advice for any individual case or situation.  

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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Why hire an immigration lawyer when immigration consultants and online immigration services offer lower rates?

The current political climate and 2016 election of Donald Trump for U.S. President have fueled fear among immigrant groups. Amidst the anti-immigrant rhetoric, it’s important to discuss your options in legalizing your status or securing the appropriate visa with an experienced immigration lawyer.

Why hire a lawyer when there is lower-cost help available through immigration consultants and online immigration services? The reasons are many, from ensuring you receive accurate advice to avoiding unnecessary delays.

The main advantages of hiring a reputable and trusted immigration lawyer, instead of depending on an immigration consultant or online immigration service are:

1. You receive guidance on which forms and documents to submit

A lawyer is not required to fill out application forms for immigration benefits. Anyone can complete the forms, which are, along with the instructions, available for free on U.S. Citizenship & Immigration Services and the U.S. Department of State’s websites.

But U.S. government agencies are not your advocates and do not consider your individual situation when providing resources and information to you. Only an immigration lawyer, who truly understands the eligibility requirements, can give you the most reliable advice on which forms and documents to submit to receive immigration benefits.

Legitimate immigration consultants and online immigration processors can certainly help you complete forms and submit the paperwork to USCIS and DOS at a much lower cost than what lawyers charge.

Nevertheless, your knowing which forms and documents to submit is not always clear by just reading instructions or doing your own research. Immigration consultants and online immigration services are prohibited from giving any legal advice concerning your immigration case, including which forms and documents to submit. Rather, you yourself have to make this determination before they then fill out the forms with your answers and prepare the documents you have given them for filing with the appropriate U.S. government agency.

Even qualified immigration consultants and highly-rated online immigration services are just document preparers. While they are distinguishable from shady Notarios who prey on vulnerable immigrant groups and engage in immigration scams, they provide limited service that does not always meet your immigration needs.

Questions on applications forms and questions from immigration or consular officers might seem simple, but often relate to legal issues that can result in denials and setbacks in your case. Immigration consultants and online immigration processors cannot counsel you on how to best answer a question or cross-check or verify your answers on the forms. All they can do is replicate and type out your responses to the questions asked on the forms.

When non-lawyer immigration consultants or online immigration processors advise you on which immigration benefit to apply for and how to prove you qualify for it, they essentially engage in unauthorized practice of law.

In contrast, immigration lawyers advise you on which exact forms and documents to submit for a particular immigration benefit. They will cross check your answers on application forms with your biographic and immigration records to help ensure accuracy and completeness. They will also counsel you on the implications of your answers to questions, as well as the effects of providing or not providing certain documents.

2. You get legal advice on how to best present your case

A good lawyer will counsel you on eligibility standards and evidentiary requirements, including those that are not spelled out in the instructions for forms or are otherwise readily known.

For instance, while an immigration consultant or online immigration service will accept your marriage certificate and divorce decrees for prior marriages as sufficient in an I-130 spousal immigrant petition, a lawyer will counsel you on additional documents to submit to prove your marriage is valid and bona fide.

A lawyer might be unnecessary in very simple cases, where the bare minimum is all that’s required to get the case approved. But in many cases, a high volume of documentary evidence, as well as credible testimony, are needed to achieve a favorable outcome.

One of the fastest growing online immigration processors, RapidVisa, states specifically that it does not give legal advice or representation, but offers a service similar to TurboTax for visa applications. At a low price, they provide online processing of K-1 fiancée visas, spousal visas, parent visas, green cards (adjustment of status), removal of conditions, citizenship (naturalization), joint sponsorship, and deferred action (Deferred Action for Childhood Arrival, under President Obama).

RapidVisa boasts an approval rate of 99.7% and 4-hour turnaround time. But it’s fair to say that these cases most likely had no complications to require the work of a lawyer, and could have been handled just as well by an applicant who was willing and able to deal with the paperwork alone.

Reputable immigration lawyers, who have the expertise to deal with the worst types of cases, are best equipped to help you present the strongest case possible. They can steer you away from pitfalls that lead to complications in your case, such as USCIS issuing a Request for Evidence or a Notice of Intent to Deny Petition. They are trained to spot issues and weaknesses that can tank your case. Unlike immigration consultants and online immigration processors, they do not merely rely on generic templates and checklists that do not account for unique situations.

3. You obtain verification on whether you actually qualify for the benefit sought

An immigration lawyer will gather facts and review your record to confirm whether you are eligible for the immigration benefit you seek. For example, under current law, you cannot apply for a marriage-based green card within the U.S. if you were not lawfully admitted to the U.S. with inspection, and you do not qualify for 245(i) benefits. If your immigrant petition is not in the immediate relative category, you may not file for adjustment to permanent residence unless you are maintaining lawful nonimmigrant status after entry as an F-1 student, H-1B worker, etc. or certain narrow exceptions apply.

Immigration consultants and online immigration processors are not equipped or authorized to verify your eligibility for a benefit sought. They cannot give advice as to which immigration status you should seek. These are legal issues that requires a lawyer’s guidance, especially when there are complications in your case.

Complications include marriage/divorce complications, visa overstays, unlawful presence, prior removal orders, illegal entries and re-entries to the U.S., immigration fraud or willful misrepresentation, false claims to U.S. citizenship, a criminal record, and being from a high-fraud country.

In June 2016, the State of Colorado passed a law that forced RapidVisa to relocate out of Colorado Springs, Colorado to Las Vegas, Nevada, where regulations related to the document-preparation industry are favorable. Known as Immigration Consultants Deceptive Trade Practice, the Colorado law targets deceptive “notarios”, which are small operations common in Hispanic communities, but it further forbids any person from offering any immigration service, regardless of whether it involves practicing law, unless that person is a lawyer.

In a press release, Ben Ives, President of RapidVisa, stated “this was simply a case of lawyers protecting their income.” He noted, “Petitioning for a family visa is a benefit request, not a legal issue. Do you hire a lawyer to apply for your driver’s license?”

Contrary to Mr. Ives’ claim, applying for an immigration benefit involves many legal issues that determine whether a person can live, study or work in the U.S., and even visit the country. Filing for an immigration benefit has a much more serious and broader impact than applying for a driver’s license.

A U.S. citizen’s decision to bring a fiancée, spouse,  or parent to the U.S. , for example, affects the fate of the family and their reunification.  An applicant’s mistake in filing for an immigration benefit, such as a green card or citizenship, for which he does not qualify can sometimes lead him into removal proceedings and get him deported from the United States.

4. You have comprehensive counseling from start to finish

In the initial evaluation of your case, and during the course of representation, an immigration lawyer can identify your priorities and pinpoint issues to help you achieve your objectives. They can lay out your various options and describe the pros and cons of pursuing each path.

An immigration lawyer can guide you on how to avoid complications or address them as they arise, such as responding to a Request for Evidence, a Notice of Intent to Deny, a Notice of Intent to Revoke, or a denial decision. He or she can intervene on your behalf to resolve problems.

An immigration lawyer can also prepare you for interviews before USCIS and the U.S. Consulates by describing what questions to expect and which issues are likely to arise, and how to best address them. They can appear with you at green card interviews and naturalization interviews to help protect your rights, present documentary information, and ask clarifying questions. They can further prepare and submit a legal brief to stave off concerns and persuade the officer to approve your case.

Lawyers must keep up with changes in the law, the risks (not just the benefits) of applying for immigration relief, and the nuances in the immigration process, and advise you accordingly.

A non-lawyer immigration consultant or online immigration processor cannot perform these vital services.

5. You get legal help from a licensed professional who is held to the highest ethical standards

When an immigration consultant or online immigration processor overlooks critical pieces of information or documents, which results in an avoidable denial or delay, there is generally no recourse. You typically have to rectify the harm through their channels or file a consumer complaint with the state attorney general.

Lawyers, on the other hand, are held to ethical standards set forth in their state rules of professional conduct. They can face disciplinary action, such as a suspension or disbarment, for failing to perform duties owed to clients. As a licensed professional, a lawyer has obligations and responsibilities that go above and beyond those of a non-lawyer immigration service.

Consult an immigration attorney at the very least 

Some states, such as California, Minnesota, and New York regulate the conduct of immigration consultants, instead of forbid them from performing any immigration service. While they may provide document preparation, they cannot offer legal advice in any situation.

Legitimate immigration consultants and online immigration processors can ease the stress that comes with handling the immigration paperwork yourself. But realize they do nothing more than document preparation. A complete reliance on non-lawyer immigration services gives you a false sense of security and could open you up to making mistakes and bungling your immigration matter.

Reliable legal representation may be more affordable than you assume. There are solo practitioners and small firm lawyers who charge reasonable fees for high-quality, comprehensive service. There are also non-profit legal service providers and pro-bono attorneys who will accept your case for sliding scale or reduced fees or no fees.

Almost everyone can gather funds to consult an experienced immigration lawyer at least once, or retain unbundled legal service to address the complicated parts of the case. Before you file for an immigration benefit, talk to a reputable immigration lawyer about the eligibility standards, documentary requirements and filing process. Relying on immigration consultants and online immigration processors can save you money upfront, but cost you a lot more in the long run.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Expedited Removal: How Do You Avoid, Challenge or Overcome It?

At U.S. ports of entries (e.g airports, seaports and land border crossings), the U.S. Customs & Border Protection (CBP) has broad discretionary power to issue you an expedited removal order when it denies your admission on certain grounds.

Avoiding, challenging or overcoming an expedited removal order is necessary if you want to return to the U.S. as a nonimmigrant or immigrant within 5 years in all cases, and within your lifetime, in some cases.

Consequences of an Expedited Removal Order

CBP officers are instructed to exercise restraint and consider, on a case-by-case basis, whether you qualify for any waivers, withdrawal of application for admission, or deferred inspection, instead of issue an expedited removal order.

Nevertheless, expedited removal orders are commonly issued at U.S. ports of entries when the CBP finds you inadmissible under INA section 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain immigration benefits), section 212(a)(6)(C)(ii)(false claim to U.S. citizenship), and/or section 212(a)(7)(lack of proper visa or other travel documents).

An expedited removal order, in and of itself, carries a 5-year bar to reentering the U.S. This means you may not obtain an immigrant visa or nonimmigrant visa, or otherwise enter the U.S. for a minimum of 5 years from the date of expedited removal.

In addition, if you are found inadmissible under section 212(a)(6)(C)(i) (fraud or willful misrepresentation of material fact to gain immigration benefit), you are barred from the U.S. for a lifetime.

An inadmissibility finding under section 212(a)(6)(C)(ii)(false claim to U.S. citizenship) also triggers a lifetime ban.

How to Avoid an Expedited Removal Order 

You have very limited due process rights in an expedited removal proceeding before the CBP, unlike in a regular removal proceeding before the Immigration Court. You have no right to counsel during primary inspection, secondary inspection, or at any other time you request admission to the U.S.

After traveling on a long flight, waiting for hours to be interviewed in secondary inspection, or enduring intense interrogation with the same questions asked repeatedly, you could be tempted to do whatever it takes to just get out and go home. You might think the simplest thing to do is admit to the officer’s allegations, accept the expedited removal order, and perhaps challenge it later after you are sent back to your country or last destination.

But your best strategy is to avoid an expedited removal order to the fullest extent possible. Stay calm and respectful, but don’t make harmful, untrue admissions to leading questions just to please the officer.

Be prepared to present supporting documents, such as a return airline ticket, bank account statement, and property ownership if you seek entry as a visitor.

If you provided false documents or presented false testimony to the CBP to gain entry into the U.S., you may timely recant the misrepresentation during the interrogation – at the first opportunity – to avoid a section 212(a)(6)(C) finding.

Silence, non-cooperation or refusal to answer the CBP officer’s questions will not get you admitted to the U.S. But you also do not want to babble, lie, or volunteer negative information that makes you inadmissible to the U.S.

You may ask to withdraw your application for admission, especially if there is no obvious fraud, you have favorable factors, and the CBP officer gives you this option. A withdrawal allows you to return to your country to obtain the proper entry document, without having an expedited removal order in your record and a 5-year bar.

Be mindful about what you bring on your trip. The CBP has authority to search you, your luggage, and your electronic devices (e.g. cell phone, laptop and tablet). For example, job applications in your bag and text messages related to seeking employment in the U.S. will raise red flags concerning the true purpose of your trip if you seek entry as a temporary visitor.

At the very least, you should work to develop a strong factual record to later challenge or overcome the expedited removal order, if one is issued. You will be handed a Form I-867A & B, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act.

Do not sign your sworn statement or initial the pages unless you have full opportunity to read it or have it read to you. Ask for an interpreter if necessary. Ask for corrections to be made. By signing the Form I-867A & B and Form I-831 (Continuation Page), you affirm that you have read your statement, your answers are true and correct, and the statement is a complete, true and correct record of your interrogation.

How to Challenge or Overcome an Expedited Removal Order

When you are unable to avoid an expedited removal order, you have two main options to challenge or overcome it:

1. Request Permission to Reapply for Readmission and,When Necessary, a Waiver of Inadmissibility

To overcome an expedited removal order and be eligible for a visa or admission to the U.S. before the 5-year bar expires, you must file a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal, and get it approved.

If the expedited removal order further states you are inadmissible under section 212(a)(6)(C)(i) (fraud or willful misrepresentation of material fact to gain immigration benefit), you must obtain an I-601 immigrant waiver under section 212(i), when seeking reentry as an immigrant, or a nonimmigrant waiver under section 212(d)(3), when seeking reentry as a nonimmigrant.

The lifetime ban under section 212(a)(6)(C)(ii)(false claim to U.S. citizenship) may be excused with a 212(d)(3) nonimmigrant waiver, but there is no immigrant waiver for it. There are, however, several exceptions and defenses. For example, if you reasonably believed, at the time of making such a representation, that you were a citizen because each of your natural parent is or was a citizen and you permanently resided in the U.S. prior to turning age 16.

If you receive a Form I-212 grant as well as any required waivers, you may then reenter the U.S., despite your inadmissibility, as long as you have the proper travel documents (e.g. valid passport and appropriate visa).

2. Request Reconsideration and Rescission of the Expedited Removal Order

An Immigration Judge may not review an expedited removal order. The federal appellate courts have also found an expedited removal order is not subject to judicial review, except to determine (1) whether the person is a U.S. citizen; (2) whether the person is a permanent resident or a refugee; and (3) whether the person was ordered removed under the expedited removal statute.

You may submit a written request for review to the CBP Field Office that issued the expedited removal order. You must include supporting documentary evidence showing why the expedited removal order was improper. The federal regulations state that motions to reopen and motions to reconsider must be filed with the Service within 30 days of the decision. Failure to file on time may be excused in the Service’s discretion where you demonstrate the delay was reasonable and beyond your control.

The CBP has discretionary authority to vacate the expedited removal order in its entirety or withdraw certain charges in the removal order, based on your documentary evidence and legal argument.

DHS Traveler Redress Inquiry Program (DHS TRIP) Is Not a Good Option to Overcome an Expedited Removal Order

You may use the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) to submit inquiries or seek resolution regarding difficulties you experience during your  travel screening at airports or border crossings.

You  file a complaint or apply for redress through the DHS TRIP program, which routes your request to the appropriate office for review and adjudication. You will be assigned a record identifier or Redress Control Number.

The DHS TRIP program is for limited purposes, and challenging an expedited removal order is not one of them. Normally, the most you will get is a response stating you need to file a Form I-212 to be readmitted to the U.S. before the 5-year bar expires.

Consult an Experienced Immigration Attorney Soon After You are Issued an Expedited Removal Order

Generally, you have only 30 days from the date of the expedited removal order to request further review by the CBP. Otherwise, to be excused from the 5-year bar, you may file the Form I-212 application at any time, in connection with an immigrant visa or nonimmigrant visa application. The same goes for I-601 immigrant waiver or 212(d)(3) nonimmigrant waiver requests to overcome a fraud or willful misrepresentation finding under section 212(a)(6)(C)(i).

If you are issued an expedited removal order, you should timely consult an experienced immigration attorney to discuss your options. You will also likely need an attorney to help you pursue a rescission of the expedited removal order or obtain the necessary waivers.

To learn more, read our other articles:

Expedited Removal: When Does It Apply and What Are the Consequences?

Expedited Removal: How Does the Process Work at the U.S. Port of Entry and What Are the Main Concerns? 

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Dan4th Nicholas