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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)