EB5 Investors Magazine Volume 7, Issue 1 - Page 68

EB5 INVESTORS M AGAZINE 66 calendar or individual hearing date for filing relief applications. The judge may also set a merit a hearing to determine eligibility for relief. While DHS bears the burden of establishing removability, once it has been established, the burden shifts to the respondent to establish eligibility for relief from removal. WHO IS REMOVABLE? In general, the grounds of removability are found in INA 237, which is titled “Deportable A liens,” notwithstanding the fact that the terms “deport,” deportable” and “deportability” now are universally r e f e r r e d t o a s “ r e m o v e ,” “ r e m o v a b l e ” a n d “removability.” Any noncitizen who was inadmissible (a different legal concept from removability) at the time of entry or adjustment of status, or who violates status, is removable. This is also true of a noncitizen who has committed marriage fraud, was convicted of a certain crime or crimes (including controlled substance violations), failed to register a change of address, falsified documents, falsely claimed to be a U.S. citizen, is a security threat, becomes a public charge under certain circumstances, or who unlawfully votes. Each of these removability sections could apply to any noncitizen, including an EB-5 investor. 2 DHS may become aware that a noncitizen, whether an unlawful entrant, a current/former non-immigrant or an immigrant, is removable through many different means, including: a denied application for a change or extension of non-immigrant status; a denied naturalization application; a notification from a local law enforcement agency that it has arrested a noncitizen; that the noncitizen has completed a term of incarceration for criminal activity and is about to be released from custody; an ICE or CBP interdiction at or near the border; a CBP inspection at a port of entry; or, most relevantly for EB-5 investors, a denied I-829 petition to remove conditions. ISSUES SPECIFIC TO EB-5 INVESTORS The most likely reason an EB-5 investor would end up in removal proceedings, if ever, is because the I-829 was never filed, was late, or was denied by USCIS. Although there are no available statistics, there is nothing to suggest that EB-5 investors are at a high rate committing serious crimes in the United States or are unlawfully voting, becoming public charges or threatening national security. Therefore, it is reasonable to assume that most removable EB-5 investors were placed into proceedings by USCIS’ issui ng a n NTA . Pract it ioners should pay close attention to the NTA because a flaw in proper service, preparation, or filing of the charging document could be grounds to terminate removal proceedings. Since most NTAs are issued by ICE or CBP, USCIS adjudicators often do not have enough experience and training to properly prepare and file one. INA 237(a)(1)(D) is the charge most likely to appear on an EB-5 investor’s NTA, but the reasons why the I-829 was denied in the first place could vary depending on the situation. Most I-829s are denied because the investor did not sustain his or her investment in the new commercial enterprise, or the new commercial enterprise did not create the requisite number of full- time positions for qualified U.S. workers. The reasons why either of those scenarios occurred could have been the fault of the investor himself or herself in a direct EB-5 case or the fault of a regional center, developer or job-creating entity in a regional center EB-5 case. Whatever the denial reasoning may be, the NTA will allege only that the EB-5 investor is not a U.S. citizen, that his or her I-829 was denied by USCIS, and it will charge removability under INA 237(a)(1)(D). Beyond that, there will not be any information available to the immigration judge or to the DHS attorney as to what happened or why. Therein lies the opportunity for a well-prepared immigration attorney to advocate and educate on behalf of the client/respondent.