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IMMIGRANT’S BILL OF RIGHTS

definitions

PRIORITY DATE …every application for permanent residency shall have a date arising upon receipt of an application that could be “approvable when filed” which priority date shall be preserved in evidence in the A file for the benefit of the petitioner, the beneficiary and all derivatives thereto, thereafter…1,

QUALIFIED RELATIVE….for all waiver applications shall include all children, parents, spouses and any petitioner including corporate or company entities when appropriate as in petitions requiring labor certifications…2

FAMILY UNITY…shall be the primary and most important consideration given weight in the adjudication of all issues of relief and waiver and in all other ameliorative statutes of the INA, and the punishment provisions of Sec. 1182 shall not take precedence over Sec. 245i and all other relief statutes. However the discretionary balance by adjudicators shall not otherwise be altered when criminal convictions are established in the adjudication.

FOLLOWING TO JOIN ..children following parents who have received valid TPS documentation shall not be refused because they were not present in the U.S. at the time of the original application period for the Temporary Protected Status.

PROCEDURAL DUE PROCESS ….shall include the right to full disclosure of the respondent’s A files without exception and all EOIR Judges shall be entitled to order all counsels, including all  District,  Private, Pro Bono and other counsels as shall appear before the Immigration Court, to comply with all orders regarding procedural due process, including orders regarding detention and enforce such orders with penalties against the person of counsel as shall be established under the regulations of the EOIR or Congress.

“CONVICTION DOCUMENTS” …Shall not include police reports since they are hearsay and cannot be corroborated by testimony and cross examination in Immigration Court and may not be used for any purpose.

“ALIENS SEEKING ADMISSION” … shall not be applicable to LPRs detained at the Border and all LPRs shall receive equal consideration of all waivers and relief arising under the INA wherever the charges arise and in all Immigration Courts, wherever situated, in order to obtain a uniform and equal treatment of all LPRs. Any form of admission, detention or parole shall grant a legal permanent resident the prima facie right to any and all defenses, relief and relief from detention, available under the INA, as a result of their previous lawful admission to permanent residence and continuing residence shall be assumed in all bail and bond proceedings arising therefrom. Continued detention in Immigration proceedings shall arise only from a determination by the IJ of the risks or dangers to the nation or the community, and  the risks of bonding violations and evasion. There shall be no set “categories of law” that shall allow detentions without providing a complete and valid bond hearing by the Immigration Judge and all detentions shall be within the Jurisdiction of the Immigration Judge and his or her orders shall not be denied by the government without the order of a U.S. District Court, BIA, or higher Court.

ZADVYDAS HEARINGS…The need for a Zadvydas Hearing shall arise for every person detained by or with Immigration process, within 15 days of  six months, and every six months thereafter, with defense counsel present when applicable and with fair notice. The Immigration Judge shall have de novo review of the proceedings or may reopen proceedings in open court in order to ensure the proper consideration of INA “family unity” policies, the policies supporting Constitutional Liberties, and the general disposition of the INA supporting economic and fair detention for valid purposes only. Detention is wasteful of human and economic resources, injures respondent’s ability to prepare a defense, and should not continue without a valid INA purpose, with humanitarian protections, and be reasonably intended to satisfy those purposes without unduly burdening the respondent.

CHANGE OF VENUE…shall be granted in compliance with FRCP, without consideration or predisposition by the Court for prior rulings of Federal Courts or Circuits in the venue otherwise valid under the FRCP and shall not be denied in order to require a pleading to the charges before reasonable venue is granted and before the local attorney may review information in the A File. No U.S. District Counsel shall order a respondent moved, during proceedings, without prior approval of the Immigration Judge in open Court before opposing Counsel, if an appearance has been filed. Any violation shall be actionable as violating procedural due process, before any U.S. Court, with jurisdiction, with such penalties against the person of Counsel as shall be imposed by that Court.

VOLUNTARY DEPARTURE…shall not be binding on a respondent, detainee or beneficiary unless the adjudicator or detainor shall have established before an Immigration Judge that full and complete disclosure of the terms of that voluntary departure shall have been made prior to the approval or waiver made by the respondent, by his signature. The failure to disclose the collateral effects of the Sec. 1182 Bars, as then enforced, or other punishment sections of the INA, shall constitute valid prima facie grounds to reopen prior determinations by Immigration Court, deny the effective waivers sought to be effected in turnarounds at the Border and find ab initio ineffective assistance of counsel without requiring a prior complaint to the Bar licensing agency. All procedures of review applied to valid notice to respondents for hearings, shall apply to valid notice for an effective waiver in voluntary departure enforcement except that a “knowing waiver” must be established in the hearing before effectuating an enforcement of voluntary departure or reinstatement.

FIFTH AMENDMENT FOR IMMIGRANTS

Even though the Fifth Amendment itself does not contain any specific equal protection language, the INA must still protect equal protection principles previously afforded to continuous residents by rule of law, under the Constitution. Although aliens at the border are generally accorded few constitutional rights, “once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.” Landon v. Plasencia, 459 U.S. 21, 32 (1982). In this respect, “a continuously present resident alien is entitled to a fair hearing when threatened with deportation,” id., regardless of whether that alien is present illegally, see, e.g., Leng May Ma v. Barber, 357 U.S. 185, 187 (1958); Augustin v. Sava, 735 F.2d 32, 36 (2d Cir. 1984). Likewise, a continuously present alien is entitled to equal protection of the laws, see Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886); Francis v. INS, 532 F.2d 268, 272 (2d Cir. 1976), even if the entry was unlawful, see Plyler v. Doe, 457 U.S. 202, 211-17 (1982).

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