By Fredrick W. Voigtmann
A noncitizen of the United States may be placed into removal proceedings by one of the agencies within the Department of Homeland Security (DHS), including USCIS, CBP or ICE. The initiation of removal proceedings begins with the issuance of a charging document, called a notice to appear (NTA). The NTA must be served upon the noncitizen by mail or in person and must be filed by DHS with the immigration court, which is within the Executive Office of Immigration Review (EOIR), an agency under the U.S. Department of Justice.
The NTA contains a list of factual allegations, usually dealing with the noncitizen’s alienage, his or her entry into the United States, and the facts under which DHS considers the noncitizen to be removable. The NTA also contains a “charge” of removability, which cites to the specific section of the Immigration and Nationality Act (INA) under which DHS believes removability lies. DHS bears the burden of establishing removability by clear and convincing evidence .
At the first removal hearing, called a “master calendar” hearing, the immigration judge takes pleadings from the respondent (the noncitizen) as to the factual allegations and the charge contained in the NTA. The respondent, or the respondent’s legal counsel, must either admit or deny each factual allegation, must concede or contest the charge of removability, and must inform the court which forms of relief from removal, if any, will be sought by the respondent. The immigration judge will take the pleadings and, after certain advice to the respondent, the judge will set the next hearing date, which could be another master 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 Aliens”, notwithstanding the fact that the terms “deport,” deportable” and “deportability” now are universally referred to as “remove,” “removable” and “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 . 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’ issuing an NTA. Practitioners 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.
ADVANCED REMOVAL, ATTORNEY ADVOCACY AND STRATEGY FOR EB-5 INVESTORS
Marriage and immigration investment cases are different: Since immigration judges and DHS trial attorneys rarely encounter EB-5 investors, it seems that there is a temptation for them to treat an EB-5 investor with a denied I-829 petition the same as they would a conditional lawful permanent resident through marriage to a U.S. citizen with a denied I-751. After all, in both of these situations, the law and regulations are similar and the reason why the noncitizen is in immigration court is because his or her petition to remove conditions was denied by USCIS. When advocating for EB-5 conditional permanent residents in removal proceedings and educating the immigration judge and DHS attorney about EB-5 matters, here are a few pointers to keep in mind:
Do not let immigration judges and trial attorneys paint EB-5 investors with the broad I-751 brush. Educate the court and the DHS attorney on what EB-5 is and the important nuances and distinctions between I-751 requirements and I-829 requirements. Each of these categories is unique in its eligibility criteria and requirements for condition removal. While the law at INA 216 and INA 216A, as well as the regulations at 8 C.F.R. 216.5 and 216.6, appear to be structured in a parallel manner, they each have substantively different requirements.
For example, removal of condition in the marriage context is based upon good faith and a showing that the marriage was not entered into for the purpose of evading immigration laws. Removal of conditions for EB-5 investors is based upon sustainment of the investment and proof of job creation. While the timing requirements for filing the respective condition-removal petitions are similar, the adjudicatory process is so different that the jurisprudence on I-751 marriage-based condition removal cases should not be applied to I-829 condition removal cases.
There is no indication that Congress intended immigrant investors prove good faith marriages or bona fide purposes for their investments any more than it intended married aliens show they maintained/sustained their marriage and procreated a certain number of children during the two years of conditional residency. Marriage cases and immigrant investor cases both deal with conditional permanent residents. The similarities end there. There is no rational reason to apply a BIA or district court decision dealing with a marriage case to one dealing with an immigrant investor because the cases and requirements are so different.
Educate the judge about the burden of proof: In reviewing the I-829 before the court, remind the judge that DHS bears the burden to establish by a preponderance of the evidence that the facts and information in the I-829 were not true and that the petition was properly denied. This is a de novo review by the judge. New evidence and testimony may be introduced and considered.
INA §216A(b)(2), which applies in the event the I-829 was filed but later denied, puts the burden on the government in removal proceedings to establish that a condition is met. Those conditions are limited to the following:
A: The investment in the commercial enterprise was intended solely as a means of evading the immigration laws of the United States;
B: The alien did not invest, or was not actively in the process of investing, the requisite capital, or the alien was not sustaining the actions described in clause throughout the period of the alien’s residence in the United States; or
C: The alien was otherwise not conforming to the requirements of section 203(b)(5).
INA §216A(c)(2)(B), which applies only in the event that “no petition is filed,” puts the burden on the alien in removal proceedings to establish compliance with the conditions of paragraphs (1)(A) and (1)(B).
Seek review of the I-829 before the judge: Also properly screen the case and strategize with your client to seek any and all relief from removal, including cancellation of removal, adjustment of status, asylum, withholding of removal, relief under the Convention Against Torture, or in the alternative, voluntary departure, as appropriate.
Team up with experts: Co-counsel and team up with an immigration court expert who knows and has a good reputation with immigration judges and the DHS attorneys in your jurisdiction. Review the Immigration Court Practice Manual and be familiar with 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 adjudicatory 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 the purposes of removal proceedings.” There are no degrees, levels or shades of lawful permanent residency. There are only conditional lawful permanent residents and lawful permanent residents. The law treats them both the same .
What INA 237(a)(1)(D) should say, but what it does not say, is “an alien with 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 when any appeal to the Board of Immigration Appeals has been dismissed or the time to file such appeal has passed .
 See INA 240(c)(3); 8 C.F.R. 1240.8(a).
 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.
 INA 101(a)(20); 8 C.F.R. 216.1.
 Matter of Lok, A-31327663 (BIA, July 31, 1981)