WHAT'S UP, ATTORNEY?
Interest of Justice, Like Beauty, Is in the Eye of the Beholder
by Atty. Emmanuel S. TIPON
"What is interest of justice?” asked the attractive Honolulu Immigration Judge.
“Interest of justice, like beauty, is in the eye of the beholder,” we replied, looking directly at her blue eyes.
“It means fair, just, and equitable. It is subjective and depends on the circumstances and the parties involved.”
We were arguing a motion requesting that our lawful permanent resident client should, in lieu of deportation, be allowed to withdraw his application for admission to the United States so that he could return to his country as if he never came to the U.S. without the stigma of deportation.
Under the immigration laws, such a motion may be granted in the discretion of the Attorney General or the Immigration Judge if it is “in the interest of justice”.
The alien was originally admitted to the United States as an immigrant from the Philippines, went on vacation, and upon his return the Customs and Border Protection (CBP) found that he had convictions for offenses that made him inadmissible/deportable. CBP released him on his own recognizance pending removal processing. Months later CBP served on him a Notice to Appear, charging that he was inadmissible/deportable for two crimes involving moral turpitude.
We told the alien that he had relief in the form of cancellation of removal but that it was discretionary with the Immigration Judge. We explained that considering the nature of the offenses which involved a woman (not necessarily sexual, stupid), the IJ, a woman, was unlikely to grant him relief. Our client declined to fight, saying he would rather go home to the Philippines.
Voluntary departure was not available since he was considered an “arriving alien” a designation given to aliens whether arriving for the first time or from a trip abroad. If he had not left the country and his conviction was discovered by DHS while he was here, he would have been eligible for voluntary departure.
The only remaining relief was to withdraw his application for admission which he made when he arrived at the airport.
Section 235(a)(4) of the of the Immigration and Nationality Act (INA) provides that an alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and depart immediately from the United States.
The Code of Federal Regulations, 8 CFR § 235.4, amplifies this provision by providing that the Attorney General may, in his or her discretion, permit any alien applicant for admission to withdraw his or her application for admission in lieu of removal proceedings. This is not a right but a privilege. The alien’s decision must be voluntary and the alien must show that he/she intends and is able to depart the United States immediately. An alien permitted to withdraw his or her application for admission shall normally remain in carrier or Service custody pending departure, unless the district director determines that parole of the alien is warranted in accordance with § 212.5(a) of this chapter.
The CFR directs an immigration judge to allow only an arriving alien to withdraw an application for admission. Permission to withdraw an application for admission should ordinarily be granted only with the concurrence of the DHS. An immigration judge shall not allow an alien to withdraw an application for admission unless the alien possesses both the intent and the means to depart immediately from the United States, and establishes that factors directly relating to the issue of inadmissibility indicate that the granting of the withdrawal would be in the interest of justice.
We were able to establish all the requirements of the statute and the regulations. The alien admitted that he was inadmissible because of his conviction for crimes involving moral turpitude. He had apologized and was forgiven by the offended party. His decision to withdraw his application was made voluntarily. He intended to and was able to depart the United States immediately. He had a valid Philippine passport and a paid airline ticket to his home country for the following day since there was no flight that day. He had the means to depart immediately from the United States with several hundred dollars in his possession. He had packed his travel bags.
We pointed out that the government’s objective to have the alien removed would be achieved immediately without any further proceedings and that the government would save money for the alien’s airline fare and the fare and other expenses of accompanying Immigration and Customs Enforcement personnel if the alien was deported. We also pointed out that allowing the alien to withdraw his application for admission would achieve a humanitarian purpose because it would not taint him with the stigma of deportation, enabling him to seek employment, which would be difficult if he was a deportee, so that he could support himself.
The DHS attorney opposed our motion, saying that the alien should be ordered deported, that he might run away, and there was no assurance that the alien would leave.
The Immigration Judge said that the alien had been released by the CBP on his own recognizance (without bond) and had been in the country since his arrival several months ago and did not run away, and that he had already a ticket. The Immigration Judge announced that she was granting our motion. The DHS attorney said that he reserved appeal.
We asked the Immigration Judge if our client could leave anyway even though the DHS reserved appeal. She said “Yes”. Our client has returned safely to his beloved country.
While waiting for his case to be called, we told our client that we went to church (Iglesia ni Cristo) and prayed to God that He will grant our request to allow him to withdraw his application for admission so that he could go home in peace. God answered our prayer.
COMMENT: Government attorneys should seek justice, not just deportation. There is a law review article discussing this issue. See: scholars.unh.edu/cgi/viewcontent.cgi?article=1037&context=law_facpub
ATTY. TIPON has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: email@example.com. Websites: www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice.