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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 108963
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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A friend of mine is in removal proceedings and also has a pending

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A friend of mine is in removal proceedings and also has a pending U visa case before the USCIS. A decision on the U visa is expected within the next month, and all indications are that it will be approved as he was a whistleblower in a labor case (he came to the country legally on a work visa). Based on the pending U petition, he has been so far able to get continuance on his removal proceedings, the latest motion to continue was also granted by the immigration court effectively moving the master calendar hearing to mid 2014, however with one condition that he file a written pleadings with the immigration court no later than Dec 1st 2013. He plan to contest the accusations as well as the charges on the NTA. He is worried that filing the written pleadings could affect his situation adversely, he is worried that once pleadings are filed, DHS or the immigration court can act against him. I am trying to tell him that they can't do anything until the next hearing date which is in mid 2014 even if he files the written pleading by Dec 1st. What I want to know is, why did the Judge put a condition of filing the written petition more than 6 months before the master calendar hearing? Is there any risk in filing the pleadings with the court? What are the possible consequences? Would the court just have it on file and then deal with it at the next hearing which is scheduled for mid 2014? Please explain/advice on anything else that could help my friend better understand the situation he is in, he is very positive that he will get his U visa approved in the next 30 days and that will result in the termination of proceedings. Thanks in advance for your help.
Hello and thank you for using our service. My name isXXXXX and I am a licensed attorney and will try my best to help you. Believe me that I will try my best to give you a solution if one exists, but sometimes the law does not have a good one.

Well, let me ask you a few questions. How is he going to deny that he is not a U.S. Citizen? How is he going to deny that he is a citizen of his country? How is he going to deny that he entered on the specific date that he entered? How is he going to deny that he entered on a specific visa? And how is he going to deny that his stay expired on a specific day and he no longer has permission to be here?
Customer: replied 3 years ago.

I am not sure what you are getting to here, but I think his plan is not to deny any of those, but to deny the charge and accusation that he violated his visa, which is what put him in removal proceedings. But the question here is, what are the consequences of filing a written pleadings with the court 6 months before the next hearing date? remember he has to follow the court set deadline of Dec 1st for filing the pleadings. His worry is, he will concede that he is not a USC, he is a native of his country of birth, but he will deny that he violated the terms of his visa. My question obviously is, whether his filing will cause any adverse effect on his current state until the next hearing? Can the court or DHS act on the filed written pleadings? or will they usually wait till the next hearing date and settle the matter in court?

Well, what I am getting at is even if he tries to deny them the ICE attorney will have proof to support each charge and the judge more than likely will agree with the ICE attorney. But following that line of thinking, how will he prove that he did not violate the terms of his visa? I have a good amount of experience in court and in regards XXXXX XXXXX NTA as well. So just bare with me a little bit. How will he support the denial of the charge that he violated his visa status?
Customer: replied 3 years ago.

I understand that ICE will fight it and try to support each charge, but what we are worried is that will just filing of the written pleadings will initiate any process from either DHS or IC? or will they wait till the next date which is in June or July I believe of 2014. Coz by then he will have his U visa and ICE has agreed in theory that if he gets an approval they will join in a motion to terminate. Like I said before, all he wants to know is whether filing the written pleadings would initiate any proceedings against him? he is a little confused and so am I about why would a Judge grant the continuance and set a new date, but at the same time ask him to file written pleadings within the end of the month? Is there anything that we are missing?

Customer: replied 3 years ago.

And just to add to that, he is a whistleblower with a federal agency, and there is a statute that protects him until the agency is done with the case he initiated. The federal agency is also his sponsor for the U visa.

Oh, I understand what he wants to do, but I want to explain the process to you a little better and for that, I would like to know how he will be able to prove that he did not violate his status. Can you tell me or he is just going to deny that he violated it and show proof that he is still in legal status like up to date paycheck stubs?
Customer: replied 3 years ago.

I think he is working with federal agents on an investigation and they consider him a whistleblower and he was told that there is a statute that protects whistleblowers until the investigation is complete, and like I said the agency is also his sponsor, he is going to use the statue to prove that there was no intent/nor did he violate the terms of his work visa, which is what is alleged on his NTA.

Customer: replied 3 years ago.

or do you mean to say that he needs to explain his defense when he files his written pleadings? Is that what you are getting to? He is worried if he will be removed even before his court date if he files the written pleadings?

There is no provision in the law that makes someone not deportable from the U.S. because they are a whistleblower. So if he tries to deny that charge, the judge is just going to find him deportable anyway because no such provision in the law exists. HOWEVER, first I want you to take a look at this article because what can happen is that he could receive “prosecutorial discretion” because of his whistleblowing and that means that for now, they would not deport him:

And here is an article about Prosecutorial Discretion:

But now for more good news….let me explain the NTA and the rest of the removal process. Whether he admits and concedes the allegations or not, they are going to easily be able to support the allegations against him. So let’s say that he admits them all or they sustain them all (one or the other is going to happen), he isn’t going to get deported on the spot. They will ask what relief from Removal he is seeking. Those can be Asylum, Withholding of Removal, Cancellation of Removal, Adjustment of Status, or a few other things including the U status. So at that hearing or the next hearing, he would explain that this is the relief he is seeking and he will present some evidence that the U status is pending and if it looks like he has a reasonable chance, the judge should continue to grant continuances until the U case is settled. If it is approved, he can ask for a hearing to administratively close the removal proceedings and that would be that. So I hope that answers your question. If he tries to deny any allegations, they will set a hearing which is fine, but at that hearing they are going to sustain the charges of removability. It doesn’t hurt him to admit or deny especially since he cannot really win a denial of the charges, or at least it doesn’t look like it to me from the information that you have given me, it will just cause him to probably have to go to court an additional time. But like I said, the important part is what comes after which is when he will explain the relief from removal that he is seeking.

Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance to you. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to and make sure you type: FOR GUILLERMO on the subject line. Thank you!

Customer: replied 3 years ago.

Thank you for explaining, just to clarify, what you mean is:


1. Just the filing of the written pleadings by Dec 1st is not going to cause anything to happen to him before the next hearing date.


2. All matters no matter how he pleads will be addressed at the next hearing in 2014 that the judge has scheduled.

1) Yes, correct. He's going to have at least one more hearing, probably 2 or more.

2) Correct, most matters, anyway, because others would have to be presented and that might be at an Individual Hearing. If he goes the route of the U status, he will probably never have an Individual Hearing. They will probably continue to give him Master Hearings until the U status is granted and then at the Master Hearing after being granted U status, they should close the removal case.

Please let me know if you have additional questions and please do not forget to rate my service to you positively as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. And don't forget that bonuses are always appreciated! Thank you.

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