Removal Proceedings & Deportation
The terms deportation and removal refer to the same thing, although removal is the legal term for the formal process by which a foreign national may be deported/removed from the U.S. Foreign nationals within the interior of the U.S. who are targeted for removal are usually placed in formal removal proceedings under the Immigration and Nationality Act (INA) Section 240, which offers more procedural protections than the expedited removal process under INA Section 235. The latter applies to foreign nationals apprehended at or near the U.S. border who lack entry documentation, or have otherwise attempted to enter the U.S. without authorization.
Grounds that may support removal of a foreign national within the interior of the U.S. can include: commission of marriage fraud; violation of U.S. lawful permanent residence or nonimmigrant status; having been inadmissible at the time of prior U.S. admission or during adjustment of status; involvement in alien smuggling or human trafficking; involvement or commission of certain offenses, crimes, or an aggravated felony; failure to register as a sex offender where required; convicted of high speed flight from immigration checkpoint; drug addiction or abuse; falsely claiming U.S. citizenship; unlawful voting; persecution of others; violation of religious freedoms; participation in recruiting of child soldiers; dependence on government assistance programs as public charge; involvement in terrorist activities; failure to timely register address change with immigration authorities; document fraud; and serious negative foreign policy concerns.
The scenario under which a foreign national may become a target for removal proceedings could include due to law enforcement asking about the foreign national's immigration status; being stopped by police or ICE; being visited at home by police or ICE; being arrested by police; being detained by ICE or Border Patrol; being stopped by police, ICE, or Border Patrol while in transit; or being detained while an immigration case is ongoing.
The three primary stages of the formal deportation process under INA Section 240 include: removal proceedings initiation; issuance of a deportation order; and the act of deportation/removal. The removal proceedings are conducted before an Immigration Judge within the Executive Office for Immigration Review (EOIR). For these proceedings, the foreign national has a right to counsel at the foreign national's expense; the right to present evidence and testimony on his or her own behalf; the right to apply for relief from removal; and the right to appeal an adverse decision to the Board of Immigration Appeals. Judicial review of a final order of removal may also be available.
Removal Proceedings
Our law firm can provide representation to a foreign national faced with U.S. removal proceedings at any stage, so that the foreign national can present the best possible case to avoid or mitigate a negative outcome.
Removal proceedings entail hearings before an immigration judge for a formal determination on whether the foreign national may remain in the U.S.
An allegation by the U.S. government that a foreign national is out of immigration status in the U.S., or has otherwise done or omitted to do something which has thereby ended a valid immigration status, may lead to the initiation of removal proceedings by the U.S. government.
To commence removal proceedings, a U.S. immigration official files a Notice to Appear with the Immigration Court, where the Notice to Appear includes allegations against the foreign national and cites grounds for removal.
Pursuant to the removal proceedings, the U.S. government has the burden to prove the allegations and grounds for removal. Where the foreign national who received the Notice to Appear does not attend the hearing, the immigration judge will typically grant the U.S. government's request for removal.
The master calendar hearing is the initial hearing upon the commencement of removal proceedings. A particular foreign national may have multiple master calendar hearings. The master calendar hearing is typically brief. At such hearing(s), the foreign national that faces deportation, referred to as the respondent, must admit or deny the formal levied charges. The respondent may also put forward any applicable and available defenses to removal, as well as file relief from removal applications, such as cancelation of removal, adjustment of status, or asylum.
The subsequent hearing, known as the individual calendar hearing (or merits hearing), is typically scheduled at the master calendar hearing. At least fifteen days prior to the merits hearing, the respondent may supplement the motion or application previously filed at master calendar hearing with additional evidence and documentation. The merits hearing is a longer proceeding than the master calendar hearing, given that the judge at the merits hearing will hear testimony, review evidence and legal arguments in order to make a formal decision on the motions or applications.
Bond
For a foreign national detained by U.S. Department of Homeland Security (DHS) to be released from custody while undergoing removal proceedings, as a guarantee that the individual facing potential removal will appear in immigration court, a bond (money) can be paid to the U.S. government by a relative, friend, or bond company on behalf of the foreign national.
Where DHS has not offered a bond or has set an extremely high amount, the immigration judge may decide to set a bond or lower the set amount. For a judge making such determinations, the judge weighs applicable factors, such as family ties, employment, immigration violations, likelihood of the foreign national to appear in court (flight risk), the severity and type of crime, and the potential danger to the community (safety risk).
Foreign nationals subject to mandatory detention are not eligible for a bond, and include foreign nationals that: are arriving aliens; have final orders of removal; carried out actions that threaten national security; or were convicted of or charged with certain crimes, including crimes of violence, crimes of moral turpitude, drug sale or possession, among others. If the foreign national believes that he or she was placed in mandatory detention in error, he or she can request a hearing before an immigration judge.
For a foreign national facing detention, our law firm can help the foreign national in seeking a bond, to the extent available, as well as building a strong case for possible release, ensuring a fair bond amount, and obtainment of a timely hearing.
Cancellation of Removal
Where the foreign national has not committed certain crimes and has been in the U.S. for a significant time period, relief in the form of cancellation of removal may be available. The standards for cancellation of removal are very high, and the immigration judge will have a lot of discretion on whether to approve such relief. The foreign national may provide our law firm with their immigration background and history, so that it can be determined if the foreign national is a good candidate for this form of relief. If this relief is granted, the foreign national will be allowed to keep or receive a green card, and the removal proceedings will end.
For a U.S. Lawful Permanent Resident to be eligible for cancellation of removal, the foreign national must demonstrate that he or she has been in the U.S. for at least seven years, and maintained lawful permanent residency for at least five of those years.
For a non-U.S. Lawful Permanent Resident to be eligible for cancellation of removal, the foreign national must demonstrate that he or she has been in the U.S. for at least ten years, has good moral character, and that his or her removal would result in exceptional and unusual hardship for his or her U.S. citizen spouse or lawful permanent resident spouse, parent, or child.
There are other eligibility provisions available for children and spouses who are domestic abuse survivors.
Asylum in Removal Proceedings
For a foreign national facing a removal proceeding, if the foreign national has suffered persecution, or has a fear of future persecution in his or her home country, the foreign national may be eligible for asylum as a defense to removal. The foreign national may provide our law firm with their history and disposition, and home country conditions, so it can be determined whether an asylum application (Form I-589) may be filed as a possible defense to deportation.
The applicant for asylum, known as the asylee, must show that he or she has suffered or may suffer persecution, which is a threat to their life or freedom. The persecution must be based on a protected ground, such as race, religion, nationality, political opinion, or membership in a particular social group. The feared persecution must be from the government; or an organization or individual the government is unwilling or unable to control. The persecution risk must be existent across the country, and not limited to a singular location/region.
Filing for asylum promptly is important where the foreign national wishes to obtain an Employment Authorization Document (EAD) in connection with the pending asylum application. The foreign national may be eligible to file for the EAD 150 days after a complete asylum application, and can receive the EAD 180 days after a complete asylum application. The foreign national must not take certain contrary actions, however, that could stop the asylum clock from accruing the required amount of days.
Appeals
Where there has been an unfavorable decision by the U.S. Citizenship and Immigration Services (USCIS) or immigration judge, an appeal to a higher authority for review of the unfavorable decision may be available. The appeal must typically be filed within 30 days of the unfavorable decision, and include sufficient detail by the appellant petitioner as to why the prior decision by USCIS or the immigration judge was made in error. An unfavorable decision may also be challenged through motions to reopen and/or reconsider.
Motions
As a means to challenge the U.S. government's charging document (Notice to Appear), allegations, or evidence against the foreign national, a motion may be filed: Motion to Terminate; Motion to Suppress; Motion to Reopen; and Motion to Reconsider. U.S. government documentation or case handling mistakes can be raised in such motions, as well as important facts and clarifications in law and policy as applicable to the case.
- Motion to Terminate (after Notice to Appear): a request for the immigration court to dismiss the case based on the U.S. government charges being procedurally or substantively defective.
- Motion to Suppress (during removal proceedings): a request that the immigration judge exclude evidence obtained by U.S. immigration officials in violation of the U.S. Constitution and other federal law provisions. Where granted, it may preclude the U.S. government from being able to utilize certain evidence necessary to prove its case, and the U.S. government may thus request the immigration judge to terminate the removal proceedings.
- Motion to Reopen (after final decision and prior to removal): informs the immigration court of newly available facts and requests the court to review its decision in light of such facts. The new facts must be supported by documentary evidence such as affidavits. The new facts must not have been available at the time of the prior hearing. The Motion to Reopen must be filed within 90 days of the final administrative order date or entry, although there are limited exceptions to this requirement.
- Motion to Reconsider (after final decision and prior to removal): a request that the immigration court reconsider its decision due to the court incorrectly applying law or policy, or where the decision was incorrect based on the record of evidence at the time of the decision. The Motion to Reconsider must be filed within 30 days of the final administrative order date of entry, although there are limited exceptions to this requirement.
Stays of Removal
A foreign national facing removal may request a “stay” to postpone removal proceedings while pursuing appeals, motions, or due to other acute personal needs. A “stay” can also be sought where the foreign national requires additional time to prepare for U.S. departure.
A stay may be automatically granted for certain cases to provide the foreign national time to challenge court decisions.
For a non-automatic stay, including where the petitioner has filed a motion or appeal, the immigration court can determine whether the stay should be granted, based on an evaluation of the following factors:
- Likelihood of petitioner's success with the appeal;
- Irreparable harm to foreign national if stay not granted;
- Injury to other parties if stay issued;
- Public interest served if stay issued.
A stay requested prior to removal due to an acute personal need, can be based on medical needs, financial obligations, as well as attendance at important events.
Where a grounds to challenge removal is not available, based on the specific circumstances, our law firm can assist the foreign national to build a case and help him or her to request the time needed to get affairs in order and handle certain pressing obligations, prior to U.S. departure or removal.
Deferred Action
Deferred action entails the postponement of the foreign national's removal from the U.S. by USCIS, which enables the foreign national to remain in the U.S. Deferred action is typically granted based on humanitarian reasons, where the applicant must prove the hardship face if removed.
As a form of prosecutorial discretion, deferred action may only be granted to a foreign national who is not in removal proceedings and has not been issued a final removal order.
Deferred action is usually granted for two-year periods, however, it can be terminated or renewed at any time. Deferred action does not provide a lawful status or pathway to U.S. lawful permanent residence or citizenship.
Demonstration of economic necessity for employment may enable an individual granted deferred action to also obtain employment authorization.
Our law firm can help assess whether a foreign national is a good candidate for a deferred action application, and a strong application will be supported by a persuasive and compelling explanation, as supported by thorough documentation.
