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If the individual does not receive a positive credible fear/reasonable fear determination, that individual will continue to be detained until an IJ reviews the finding with the individual present in the courtroom. If the IJ concurs with the CIS Asylum officer’s negative finding, the individual may file a Motion to Reopen and/ or a Motion to Reconsider with the IJ and/ or the USCIS Asylum office. Without a positive finding, the individual will be deported. A mother who receives a negative reasonable fear determination will not be released unless her child has received a positive credible fear determination.25 Cancellation of Removal and Adjustment of Status Lawful permanent residents may be eligible for Cancellation of Removal whereby an IJ allows them to retain their permanent resident status.26 Others may be eligible for Cancellation of Removal whereby the IJ may grant them LPR status.27 Adjustment of Status is another possible remedy, in situations where, for

18

November/December 2016

an example, an individual enters the U.S. legally and then marries a U.S. citizen or has had a petition filed for him before April 30, 2001.28 Waivers are available for certain grounds of deportability and inadmissibility but they must be attached to the underlying relief application.29 For example, a detained individual may try to adjust status to LPR in Immigration Court on the basis of marriage to a U.S. citizen and lawful entry into the U.S.30 If convicted of one offense of possession for his own use of 30 grams or less of marijuana, that individual is not deportable.31 However, the individual is nonetheless statutorily inadmissible and must apply for a waiver.32 What Are a Detainee’s Rights in Immigration Court? There is no right to a court-appointed attorney in immigration proceedings; however, the individual has a right to an attorney at his own expense.33 The only exception is mentally incompetent detainees within the jurisdiction of the

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Ninth Circuit, who are entitled to free legal representation.34 Outside the Ninth Circuit, a mentally incompetent individual does not have the right to appointed counsel. However, a detained mentally incompetent individual, or one who appears to be mentally incompetent, must have appropriate safeguards in place to ensure that the individual receives a fair hearing before the IJ.35 Conclusion The detention of undocumented immigrants has no foreseeable end and poses challenges and difficulties to attorneys representing often highly stressed and, sometimes, abused undocumented immigrants, including minors. Therefore, it is imperative that attorneys keep abreast of any changes to the law and its application as well as any policy or procedural changes. Janet B. Beck is Visiting Assistant Clinical Professor at the University of Houston Law Center. She wishes to acknowledge the con-

THL_NovDec16  

The Houston Lawyer magazine, November/December 2016 issue

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