Many concerned friends in the Marshfield, Massachusetts community and fans of Mandarin and Tokyo restaurant have contacted me and asked me for information on Kong's immigration / deportation case and what they can do to help. As Kong's immigration and deportation defense lawyer, on my immigration blog I explained earlier the legal predicament that Kong is in and why a detailed letter of support is the best way to help him out.
Now, we are preparing a formal request to the attorneys from the U.S. Immigration and Customs Enforcement that they review Kong's case in light of recently issued prosecutorial guidelines and that they consider joining Kong in a motion to reopen his in absentia deportation order. Since Kong has an order of removal or deportation from an Immigration Court in New York (not Boston), our request must go to the New York office of U.S. Immigration and Customs Enforcement.
Here are some relevant question about this deportation case:
Once we have requested that the attorneys from U.S. Immigration and Customs Enforcement reopen Kong's order of removal, can we also simultaneously request an immigration bond hearing so that an Immigration Judge could release Kong from custody? Unfortunately, we can't. Kong's isn't eligible to ask for bond because right now he has a final order of removal or deportation, which is why reopening this order is our first step.
Where would an immigration bond hearing taking place? If--and only if--the Immigration Court decides to reopen his case, Kong's bond hearing would likely be in Alabama, which is where he is currently detained. And at that point there would be no way to get the Immigration Court to hold a bond hearing in Boston Immigration Court.
Will Kong remain in jail for a bond hearing? Yes. For the time being, Kong is legally required to remain in the custody of U.S. Immigration and Customs Enforcement unless or until (a) his order of deportation or removal is reopened (b) Kong successfully requests immigration bond and (c) someone pays his immigration bond.
Can we request to get Kong back in a Massachusetts immigration jail? If Kong's order of removal or deportation is reopened, then we can request that he be released on the payment of an immigration bond. After bonding out, we could request a change of venue to move his deportation case to Immigration Court in Boston, Massachusetts. Unfortunately, right now, with a final order of removal, Kong has no legal basis to demand that he be moved to a jail in Massachusetts.
Are you filing the motion to reopen based on him not getting proper notice? No. I've closely reviewed Kong's file in Immigration Court and based on my reading of his proceedings, the record shows that Kong's former lawyer had adequate notice of the hearing but, through miscommunication with his lawyer, Kong did not. Kong's lack of actual notice will be a discretionary factor in our request for a joint motion to reopen. But because his lawyer did have notice of the hearing, Kong, in my professional opinion, could not successfully move to reopen his deportation order based exclusively on his lack of notice. And it would be extremely difficult for Kong to pin the blame on his former lawyer since these events took place more than a decade ago. This is why I believe that the best strategy is to seek a joint motion to reopen.
Once we have submitted our formal request for a joint motion to reopen Kong's case, how long will it take for attorneys for U.S. Immigration and Customs Enforcement to make a decision on our request? My understanding is that it typically takes their office 90 days to make a decision on such discretionary requests. And, again, there would be no way to get Kong released from custody while our request is being considered.
I heard that since Kong has been in the United States for more then 10 years he can automatically file for a hearing in Immigration Court without reopening his order of deportation or enlisting the cooperation of attorneys for U.S. Immigration and Customs Enforcement. Is this true? No, it's not. Kong doesn't have the legal right to reopen his case based on his presence in the United States for 10 years or more.
One final point: Since Kong has a final order of removal or deportation, he could be returned to his own at any moment and without advanced notice. If he were to be returned, it would be extremely difficult--maybe impossible--to get him back to the United States legally. My understanding of immigration laws is that a joint motion to reopen would not automatically serve as a stay of deportation. But common sense tells me the attorneys for U.S. Immigration and Customs Enforcement wouldn't agree to reopen his order of deportation, while deporting him at the same time.