EB5 Investors Magazine Volume 7, Issue 1 - Page 71

EB5INVESTORS.COM 69 i n you r ju r i s d i c t ion . Re v ie w t he I m m ig r at ion Cour t Pract ice Ma nua l a nd be fa m i l ia r w it h local immigration court practices and individual requirements of the judges. Argue that INA 237(a)(1)(D) is constitutionally void for vagueness. Only an immigration judge has the authority to terminate lawful permanent resident status. USCIS cannot terminate the status of a lawful permanent resident. It has only the adjudicator y authority to deny the I-829 petition. USCIS’ granting status on also a temporary basis during removal proceedings makes the statute unenforceable against those conditional residents whose petitions to remove conditions have been denied. FLAWED LANGUAGE: Nowhere in the statute or regulations is there any U.S. immigration status described as “permanent resident only for t he pur poses of removal pro ce e d i ng s.” The re a re no de g re e s, le ve l s or s h a d e s of l a w f u l p e r m a ne nt r e s id e n c y. The r e are only conditional law ful permanent residents and law ful permanent residents. The law treats them both the same. 3 What INA 237(a)(1)(D) should say, but what it does not say, is “a n a l ien w it h permanent resident status on a conditional basis … whose condition removal petition has been denied under such respective section is deportable.” As the statute is written now, however, requiring status termination, the language is fundamentally and fatally flawed. In other words, DHS cannot sustain its burden to prove by clear and convincing evidence that the permanent resident status has been terminated while USCIS continues to issue stamps evidencing lawful permanent resident status. The respondent either has permanent resident status or he does not. If he has status, he is not removable and DHS cannot sustain its burden. The removal proceedings should be terminated. IMPORTANT TIMING: A permanent resident maintains that status until a removal order becomes administratively final. A removal order becomes administratively final w he n a ny app ea l to t he B oa rd of Im m ig r at ion Appeals has been dismissed or the time to file such appeal has passed. 4 F redrick W. V oigtmann , who graduated from Ohio State University in 1990 and from Capital University Law School in 1993, owns the Law Office of Fred Voigtmann, P.C. with offices in Woodland Hills and Arcadia, California. He is a board-certified specialist in immigration and nationality law (California State Bar Board of Legal Specialization). Voigtmann’s practice offers legal services for investors, employers and regional centers, and he is a mentor and advisor to immigration attorneys. He has written articles on immigration and spoken on various employment- based immigration issues. Sources 1 See INA 240(c)(3); 8 C.F.R. 1240.8(a) 2 While this article focuses on conditional lawful permanent residents whose I-829 petitions have been denied, it is important to note that conditional LPRs and those LPRs without conditions are equally subject to INA 237 removability grounds. 3 INA 101(a)(20); 8 C.F.R. 216.1 4 Matter of Lok, A-31327663 (BIA, July 31, 1981)