Transcript:

Hello! If we haven’t met, I’m Scott Berry. I’m one of your hosts for Immigration Nation. Kleine Powell is producing today. She’s behind the cameras. We’re going to be talking removal defense with Jorge Muñoz of the Jorge Muñoz Law Firm. Welcome. Thank you very much, Scott. This is a big part of your practice. And so we thought you were the ideal guest to be talking about removal defense. Thank you for coming and visiting. Thank you for having me. Jorge drove up actually, all the way from Houston just to be on the show, so we appreciate that. Thank you very much. Tell everybody a little bit about your law firm, before we jump into removal. I’m from Colombia. I’m originally from Colombia. I am an attorney in Colombia also. Licensed in New York and in Texas. That’s what I decided to come from South Carolina. We have another branch in Charleston, South Carolina, and here we are doing not just removal defense, but let’s say that the removal defense is our like main topic or our main services are in that area. Who actually qualifies for removal services? Can you describe who might qualify for removal services? Sure. You have mainly three types of clients that could end up in a removal defense proceedings. First of all, those who enter without inspection, we call it EWI. Those people, usually cross the border without any documentation. But not just people who enter without inspection could end up in removal proceedings. Persons who, for example, enter legally under visa, tourist visa or student visa. And then they overstay their visas. It ended up being in removal proceedings. And also, let’s say legal permanent residents, LPR who perhaps committed, crime and not all crimes, but some types of crimes, could take a person or could make that judge end up open Removal Proceedings as a result of that. Exactly. So now, when it comes to removal defense, you have multiple options. There’s several options that you could use in proceedings. You have, depends obviously on the circumstances. But let’s say that the most common ones are asylum, what we call CAT, which is protection under the convention against torture, we will have also withholding of removal. We would have also things like prosecutorial discretion. We will have also U Visa. We will have also VAWA. All those are tools that we can use eventually in a removal proceeding. Let’s take them one by one. What about asylum? Asylum is probably the most famous relief, type of relief because it has so many, good features. First of all, it’s a path to lawful permanent residence, which is great. And for people who has been persecuted, the way the law call it is, you must have a well-founded fear of persecution on account of those are obviously legal terms. Behind those terms, you will find literature of thousands of books that has been written. Saying what means on account off. But I prefer to use those terms because those terms are exactly how the law called it. And it is a well-founded fear of persecution on account of race, nationality, religion, or a political opinion and particular social group. Those five type of characteristics are protected by the US law. So if you are being persecuted for one of those reasons, you can pursue an asylum claim. You have obviously, there are a lot of different requirements. It’s not easy. The burden of proof. And the first one is usually the one year deadline. It means that you have to submit your claim within a year. If you don’t do that, you have another type of relief that probably we’re going to talk about it, which is withholding of removal. But although in terms of the law, they’re pretty similar, but the benefits are not the same. Asylum is by far better. So which leads to there’s no way you want to try to represent yourself. If you think that you qualify for asylum, you need to get an attorney that can help you. Otherwise, you’re expected to be removed. Exactly. That’s what I think. And obviously, most of the attorneys will tell you that. The law is very complicated and is changing all the time, is obviously based on case law. I mean, we have to prove that the country of origin has not been or it has been unable or unwilling to protect that person. That’s not easy. That’s a very high standard. That’s not easy to prove in a removal proceedings and also obviously in asylum, you have two different scenarios. The first one is that you can do it affirmative before USCIS, which is obviously, a better scenario because there you don’t have a prosecutor, which is in the removal defense scenario, the person who’s trying to remove you, which is the current term, it used to be deport you, but now the law has changed. And now the way that is politically correct to say is remove you. So, in the affirmative scenario, you don’t have the prosecutor. But it’s a scenario where you have a confrontation, you have the judge, which by the way, I used to call it with my clients— that probably they wouldn’t like it that I call it in that way. But they’re not real judge. They are judges that depend on the executive. In this case, currently they depend on Biden, which is obviously not a real judge, usually a real judge depend on the judicial branch. In immigration, unfortunately, you can only see a real judge in 10 or 12 years because you have to go first through the immigration judge. That, as I say, depends on the executive branch, not on the judicial branch. And then you have to go to the appeal, which is also obviously executive branch, Board of Immigration Appeals. And only when you lose on the Board of Immigration Appeals, you can go to a circuit, which is third article judge. Third article, meaning third article of the Constitution of the US. So that’s the only occasion that you can go to talk. I mean, the whole procedure is almost— it depends obviously on the, on the circuit and on which state you are but usually it would take 5 to 10 years together. You talked about the withholding. Talk about that. Try to finish your thought on that. Yeah, basically with withholding you have— the law is pretty much the same. But the standard is different in asylum it’s the well-founded fear of persecution. While in withholding is the law says that it has to be more likely than not that’s the standard. It’s crazy because it means that you just have to change a few words and then it totally changes the way that we have to submit, or that we have to show to the judge that our client is more likely than does not to be persecuted on account of the same five characteristics that we have already mentioned for asylum. Basically the standard is higher and you don’t have the same benefits. It is not a path to lawful permanent residence while the asylum is. While the case is under review, is that what you’re saying? You don’t have that path? No, in other words, if you are granted asylum after a while, two years, you can get lawful permanent residence while with the withholding it’s just, you are not going to be removed. Withhold your removal, but you are not going to be ever, a lawful permanent resident. It’s not a path to lawful permanent resident. It’s just a path to a limbo. So another term that people hear a lot, is VAWA, the Violence Against Women Act. That is a tool that you can use as well? Talk about that a little. It’s another excellent tool because one of the most difficult problems that we have with, especially with people who are EWI, we already say it in print without inspection. Is that the law? Doesn’t allow you to adjust status inside the US. Things that start wrong, you have to fix it first. Yeah. So they have to go abroad to do a consular proceeding. I mean, before they have to do a waiver. And that waiver requires also a qualifying relative, which is obviously most of the cases you don’t have that relative. But in any case, VAWA and Asylum, those types of relief forgive that illegal entry. You don’t have to do the consular proceeding. That’s why there are so powerful. Yeah. With VAWA basically, what you have to say that U.S. citizen or a lawful permanent resident has harmed you in a way the standard for the law is extreme cruelty battery or extreme cruelty. That’s the standard. Those two are the exact words that the law has battery or extreme cruelty, and those are just some of the requirements. It’s not easy to have it. You can do it. The VAWA you have, affirmative one which is before USCIS, but also you can use VAWA to defend yourself in a removal proceeding. And so this one is similar. What I’m going to ask you about is talk about torture. Not quite as well known as a removal defense, but just talk about Convention against Torture. The CAT, we usually CAT, is like the most difficult to get because you have like the three standards. Asylum, which is very difficult but is easier than withholding of removal. And then you have torture in that order. So CAT is the most difficult to get. In that one, you have to prove that you have been tortured. I mean, the standard is the same at withholding more likely than not. You have to show the government that is more likely than not that your client is going to be tortured if he’s removed. So, what about prosecutor discretion? Prosecutorial discretion. We used to call it PD. It that’s a great tool. Also it comes from basically a Memo a decision from the Biden. We call it Memo Doyle. Doyle is the surname from the person who signed that memo. It just puts the priorities for the U.S. government: national security, health, and the third one is, if you have crossed the border, after November 21st of 2021, you are a priority. So those three are the priorities. If you are not there in 30, you can ask the government not to prosecute you. As I mentioned in in the removal defense, you have three parties. In the room of defense., you have the government. All of them are the government. But I mean ICE, which is the prosecutor, the guy who told the judge, please deport this guy. That’s ICE. I like to call it the immigration police because it’s easier for people to understand what’s their role there. ICE and then you have the judge and us, the attorney, the respondent. Those three parties you have there in the prosecutorial discretion. You don’t tell the judge that please stop the procedure. It’s ICE. You told the prosecutor, “Please your boss., Biden says in this memo that my client is not a priority for humanitarian reasons or for medical reasons or obviously in some cases, even though my client is there.” I called said to ICE. Please have in mind or have in consideration that my client has medical problems or humanitarian reasons not to be prosecuted. So it’s due to their discretion. But it’s a tool? It’s a tool. So I think we’ve talked about most of the big ones except for the U Visa. The U Visa has the same characteristics of the asylum and the VAWA in terms of it forgives you, the illegal entry, which is just very few tools that allow you to avoid the consular proceeding or the waivers in order to say to the government, please forgive me because I came without permission. So with the U visa, you have the same. There, basically what you have to show is that you have been a victim of one of the crimes that is listed. There’s some difficulty there because you have 50 in this country. You have 50 criminal systems and one federal criminal system. So our first job is to compare that. Let’s say it’s a felony, could be a felony, could be a misdemeanor. That is state felony with the federal felony because you have a list and you have to compare that the felony from the state with the felony from the federal government, what we call the generic definition and compare and see if it’s there. If it’s not there you, I mean, obviously you can battle, but the first requirement is that you have to be victim of one of those crimes. In addition to that, it has obviously the crime has to happen in the US. Then it has to I mean, you have to prove that you have, helped the authorities to solve the crime or to prosecute the person who committed the crime. And also, you have to show that it had caused you harm, and it has to be the law says it has to be substantial physical or emotional harm. That’s the standard that you have to show when in a U Visa. Those are pretty much the requirements for a U Visa. What is the likelihood if someone came to you and said, I need some help with removal proceedings, that one of these tools would give them a fair opportunity? Do you have enough tools to give people a fair opportunity? What’s that like? Obviously the first thing that we have to do is a very complete intake to see sometimes things that people, I mean, sometimes you realize on the middle of the of the screening or the intake that they have opportunities that they don’t know. Obviously, that’s why you go to an attorney to ask for like a consultation and you actually do free consultations for people that have questions? Yes. That’s correct. And so someone would come to you and think, I have a case. I think maybe I need an immigration attorney. You would go through a process of asking questions to see if they might apply for one of your tools. Is that about right? Yes. So Jorge, tell us how soon should someone notify you if they think that, they have a case? What’s the timing like on that? Do they wait to a certain point? They do it very early on? When should someone engage an immigration attorney? If you have the intent, which is a term that is quite important in immigration. From the very beginning. From the very beginning, if your intent is to immigrate to this country, that’s the moment that you have to look for an attorney. I don’t know if that answered your question does. So it’s well, it’ll before the removal defense. That’s the way I came to this country. That’s how E2 investor. I decided to come to the US to move my own business. I’m an attorney in Colombia and I’ve been an attorney for the last 25 years. But I was also an entrepreneur, and that’s how I decided to come. And obviously, my first thing to do, even though I’m an attorney, was to look for an advice for a specialist in E-2 investor visa, which is something that I also do right now. And I have obviously helped entrepreneurs to come to this country to develop their own endeavor. Just like you did. Just like I did. So Jorge, thank you very much for visiting with us today. Love the information that you shared. You’ve been able to kind of clear up what is a little bit of a complicated issue, removal proceedings. There’s a lot at stake on cases like that. So I highly recommend that people get professional help and know and get it as soon as possible. Thank you for having me. And yes, this is obviously a life changing decision to hire someone to help you in a matter that obviously could change your life. Yeah. Forever. And what if someone wanted to contact you, from email, social media or telephone? Can you share with, our listeners, the best way to contact you if they had questions or wanted a consultation? My website and our telephone number is always available. And my number is (346) 576-5000 The website is jmimlaw.com and there you can even book a consultation with us. So for those who have family members or friends that are in removal proceedings, this is a little bit of an understanding as to how an immigration attorney would go about your defense. And even an example of, one of the immigration professionals. If you’d like to talk to Jorge he’s got a wonderful practice started in Charleston, opened a second office in Houston, and he would be a good person to chat with. Jorge, thank you for joining us. Thank you for having me. And Scott, as I mentioned, it will be a pleasure. Please contact us and let’s do it together.