General Information

Know Your Rights:

You have rights in deportation/removal/detention matters.  In the United States, undocumented aliens have several rights that he or she needs to be familiar with and assert.  These rights are

• Right to be treated humanely
• Right to remain silent
• Right not to be forced to sign any documents
• Right to an attorney at your expense
• Right not to open the door unless the authorities have a warrant
• Right to a reasonable fear interview if you are afraid to go back to your country
• Right, in some circumstances, to release from custody or have an immigration judge review your custody status
• Right to have your case reviewed by an immigration judge or Board of Immigration Appeals
• Right to an interpreter
• Right to have the charges and other matters in your case explained to you
• Right to continue your hearing to obtain an interpreter or prepare for your case

What we can do for you:

The Law Offices of Alex Gortinsky provides deportation defense and representation in asylum claims.  We are dedicated to representing aliens in removal, detention and exclusion proceedings. 

Our deportation / removal practice focuses on the following areas:

• All types of removal proceedings
• Asylum cases
• Exclusion proceedings
• Withholding/Restriction of removal
• U.N. Convention Against Torture & Other Inhumane Treatment (CAT)
• Cancellation of removal
• NACARA applications
• Temporary Protective Status (TPS)
• VAWA claims
• Appeals to the Board of Immigration Appeals (BIA)
• Appeals to the Ninth Circuit Court of Appeals
• Release from detention.  You may be eligible for release on an immigration bond or other terms of release
• Criminal Immigration Problems, Post-Conviction Relief and Expungements both Federal and in California. We can serve as a consultant for your criminal attorney (private or public defender)
• Fiancé & Marriage Visas throughout California and the United States
• U.S. Citizenship and Naturalization Applications and Appeals
• I-751 marriage waivers for conditional permanent residents
• Writ of Mandamus for Naturalization and Immigration Application Delays
• Federal litigation in the Eastern and Northern Districts

Geographic areas:

Our office will represent aliens in deportation and asylum cases throughout the United States.  In the past we have assisted aliens in detention, removal, asylum and immigration court matters in the following locations: Sacramento, San Francisco, San Jose, Los Angeles, San Diego, Reno, Las Vegas, Seattle, Chicago, Denver, Salt Lake City, Phoenix, Eloy (AZ), Florence (AZ), Del Paso (Texas), St. Louis, New Orleans, Memphis, Atlanta, Cleveland, Kansas City, Charlotte, Miami, Orlando and Philadelphia. 

Asylum Practice:

Our office has handled multiple asylum cases in and out of immigration court.  We also represent clients from all over the world, fleeing persecution on account of race, religion, nationality, political opinion, sexual orientation, and gender.  Asylum applicants need experienced legal representation as the laws change regularly.  Issues arise with regard to standards for persecution versus discrimination, whether the asylum case falls within a protected ground, credibility, corroboration and bars to asylum.  The asylum laws and requirements can be interpreted differently in each federal appellate jurisdiction.

We will evaluate your asylum case, assist you in presenting your asylum case and represent you in immigration court.   We can also represent you in your appeal to the Board of Immigration Appeals (BIA), federal court (Eastern and Northern districts) and Ninth Circuit Court of Appeals.

Please note that if you file for asylum affirmatively (not in removal proceedings), you will be putting yourself in removal proceedings if your case is not granted by the Asylum Office.  If your asylum case is denied by the immigration judge and your appeal is also denied, you will need to leave the United States.

Immigration Consequences of Criminal Convictions:

The Immigration and Nationality Act imposes harsh sanctions on non-citizens in the United States who violate the law. This area of immigration law is subject to change rapidly through congressional amendments, DHS action, and court decisions, it is especially important to consult an immigration lawyer before accepting any plea agreement or having contact with DHS after a conviction is sustained.  The Law Offices of Alex Gortinsky is available to consult with your criminal defense attorney.

Immigration relief and options to consider:

There are various forms of immigration relief that an alien can apply for in removal (deportation) proceedings in order to preserve their legal status or to obtain their permanent resident status.  During removal proceedings, the immigration judge has the final say to grant or deny immigration relief.  Which relief you seek depends on your individual circumstances.  Only an experienced attorney can assist you in making the right decision.  The most common forms of relief are:

1. Cancellation of Removal
This is an important legal remedy for both permanent and non-permanent residents who are in immigration court removal/deportation proceedings. This form of relief is available for lawful permanent residents (green card holder) who have resided continuously in the U.S. for at least five (5) years as permanent residents and have resided continuously in the U.S. in any lawful status for at least seven (7) years.  The alien must essentially demonstrate that there are more positive factors than negative to justify being allowed to stay in the United States. Generally, a lawful permanent resident must not have been convicted of an aggravated felony or other crimes.

In order for a nonresident to qualify for Cancellation of Removal an alien must have resided in the U.S. continuously for ten (10) years after entering the United States without inspection (illegally).  The alien must establish good moral character during the ten year period preceding the decision made.  The alien must also demonstrate that his/her removal would result in exceptional and extremely unusual hardship to a qualifying relative: a U.S. citizen or lawful permanent resident parent, spouse or child residing in the U.S.  The hardship requirement is a very difficult standard to meet and aliens are encouraged to retain an experience attorney to assist them in presenting this request for relief.

Please note that if you file for cancellation of removal affirmatively (not in removal proceedings), you will be putting yourself in removal proceedings.  Only an immigration judge has the authority to grant you this relief.  If your case is not granted and your appeal fails, you will be ordered removed (deported) from the United States.

2. Adjustment of Status
If eligible to apply in the United States, certain aliens can also avoid being removed by applying for a lawful permanent status (green card) through a family member or previous status.  Aliens are often unaware that this is a possibility.  In some cases you may be able to adjust in the United States.

3. Asylum
Asylum is an important privilege that the United States offers to aliens seeking persecution.  Asylum may be granted to aliens who are already in the United States and are unable to return to their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion. Asylum can be filed before your case is referred to removal proceedings (also called affirmative application) or after proceedings are initiated by filing of a NTA or Notice to Appear (also called defensive application).

An alien must file an asylum application within one (1) year of arrival in the United States. An asylum application may be filed later than a year, if conditions in the home country have changed or if the alien’s personal circumstances have changed within the past year prior to requesting for asylum and the change of circumstances affected the alien’s eligibility for asylum.  Furthermore, an alien may be excused from the one year filing deadline if extraordinary circumstances prevented the alien from filing within the one year period after arriving in the United States, so long as asylum application is submitted within a reasonable period of time in light of those circumstances.  Interpretation of asylum requirements and laws are always changing. 

If you are thinking about filing for asylum, please keep the following in mind:

• If you knowingly file a frivolous (fraudulent) application for asylum in the United States you will be barred forever from seeking any relief in this country in the future, in addition to any criminal penalties that could be imposed.
• You have the privilege of being represented by counsel of choice at no expense to the government.
• You must notify the government of any changes in your address or phone number.  You are obligated to notify the government in writing of any changes in your address within five (5) days.
• If you fail to attend any court hearings, whether or not you are represented by an attorney, the Court will order that you be deported (in absentia).
• Your fingerprint/biometrics must be current to be granted asylum.  If you fail to obtain the fingerprints/biometric when ordered to do so, your application may be deemed abandoned.
• Your claim may be subject to a law called the RealID Act.  This law requires, among many other things, that your claim be supported by documentation.  Your failure to provide supporting documentation may result in the denial of your claim.
• You must bring to all interviews and hearings all original documentation that were submitted, including any envelopes in which the documentation was sent to you.
• If you file for asylum affirmatively (not in removal proceedings), you will be putting yourself in removal proceedings if your case is not granted by the Asylum Office.
• Statistics show that an asylum applicant that is represented by an attorney has a far greater likely of success than an applicant that is applying by themselves or assisted by a non-attorney.

An alien granted asylum will be able to apply for permanent resident status one year after being granted asylum status.

4. Withholding of Removal
Withholding of Removal is an alternative form of relief for an individual fearing persecution in his or her country of origin. To obtain “Withholding” an alien must demonstrate that he or she is “more likely than not” to face persecution if returned to his or her country. An individual is not eligible for withholding of removal if he or she is a persecutor or has been convicted of a particularly serious crime.

Aliens who win “withholding” have a final order of removal (deportation) against them. However, they can remain in the U.S. and work legally.

Unlike someone granted asylum, however, an alien granted “Withholding” does not have the right to apply for legal permanent residence.  Also, the “Withholding” of deportation does not extend to a spouse or child unless they apply and are granted their own relief.   

5. Convention Against Torture ( also referred to as CAT)
To obtain C.A.T. relief, an alien must demonstrate that it is more likely than not that you will be tortured, killed or sustain great bodily injury if you are returned to your home country.

An alien who has been granted CAT cannot be removed to the country in which he would face torture. However, a CAT grantee has no ability to obtain legal permanent residence, to travel abroad, or to sponsor family members. Furthermore, CAT grantees are not guaranteed the ability to obtain employment authorization or even the right to be released from detention.

6. Waivers

7. Deferred Action (DACA)
Childhood arrivals that overstayed their visas or entered the country without inspection can apply for deferred action.  Deferred action is a two-year renewable status, which allows the alien to lawfully work in the United States.  There are several important filing and renewal requirements that need to be evaluated before filing.  It is also unclear at this point how long this “status” option will be recognized by the United States government.  If you have lack of documentation, criminal issues, have used an invalid social security number, it is important that you consult with an experienced attorney before filing.

8. Voluntary Departure
This form of relief, if granted by an immigration judge, will avoid a removal order and thereby allow you to return to the U.S. without a mandatory 5 or 10 year bar of reentry which would otherwise result from a removal or deportation order.

An Immigration Judge can grant up to 120 days of voluntary departure time if voluntary departure is requested at the Master Calendar hearing, (prehearing voluntary departure) or 60 days if requested at the Individual hearing.

A showing of good moral character is not required for prehearing voluntary departure. However, good moral character is required if voluntary departure is requested at the Individual hearing, along with a showing of being physically present in the USA at least 1 year prior to being served with the Notice to Appear.

A $500.00 bond will also be required by the Immigration judge if voluntary departure is requested at the Individual hearing. An alien convicted of an aggravated felony is ineligible for voluntary departure at either the Master Calendar or Individual hearing stage.

Please note that there are serious consequences if are granted voluntary departure and do not leave as required.  Such consequences can include monetary penalties and bars to relief.

9. Appeals
Negative decisions made by USCIS and an Immigration Judge can, in most circumstances, be appealed.  The process and agency that will handle the appeal or review of the decision depends on the type of immigration matter that was decided.  There are strict timeliness and requirements for filing an appeal.  If you fail to follow the requirements of the appeal, you could be barred from having your negative decision reviewed.

Other Immigration Matters:

Our office will work with other immigration offices, such as Muston & Jack, with regard to employment, investor or consular processing of visas.  Muston & Jack’s sole focus is on Immigration and Naturalization Law.  They are located in San Jose, the heart of the Silicon Valley; with a branch offices in other locations.  You may contact them directly at http://www.mj-law.com/.