Removal and Deportation Defense

Removal and Deportation Defense

Removal Proceedings Defense

Removal proceedings are initiated by the filing of a Notice to Appear (NTA) at the EOIR.  An NTA will list allegations that ICE must prove are correct in order for an immigration judge to order your removal. An NTA will have a hearing date when the foreign national must appear before an immigration judge, or else he or she will be ordered removed in his or her absence. The first hearing is known as a master calendar hearing. In this brief hearing, the foreign national will answer the allegations of the case and present defense(s) to the court.   

Master Calendar Hearing and Individual Hearing

At the master calendar hearing the judge will ask the foreign national to reply to the allegations charged against him or her in the NTA. This stage of the proceeding is similar to entering a plea to criminal charges, although this is not a criminal proceedings and instead, is considered a civil administered proceedings. If the foreign national is not represented by an attorney, he or she may typically be granted a short continuance in order to find counsel, at his or her own expense or through a nearby legal aid service provider.  If the foreign national has an attorney, the immigration judge will first ask if the individual standing beside the foreign national is accepted as his or her attorney.  After the foreign national responds affirmatively that he or she wants the attorney to represent him or her, the attorney will then answer most of the questions. The attorney should review with the foreign national information about the foreign national prior to the Master Calandar hearing in order to determine what allegations are true or should be admitted, what allegations are untrue or should be denied, and what types of relief from deportation could be available, if the allegations are true and would lead to an order of removal.  The immigration judge may set several Master Calendar hearings in order to allow sufficient time for discourse with the client, or to have certain applications for relief submitted, or to address issues or law or fact.

Note:  If the foreign national fails to appear at any scheduled hearing, the immigration judge will most likely enter an Order of Removal on the record, even in the absence of the foreign national.  If the foreign national fails to appear, seek immediate legal assistance, as the options to reopen the removal proceedings or  prevent removal are very limited. 

At the Individual Hearing, the immigration judge expects and anticipates that all defensive relief is presented, testimony is allowed and expected, evidence is submitted – typically ahead of the prescribed time and date of the hearing, and depending on the burden of proof, the proper party must prove their case.  If there are issues of law, the immigration judge may request a legal brief to be submitted on a certain subject, however, many of these issues are typically handled either at the master calendar hearing, or by separate hearing, to determine eligibility of certain forms of relief or other matters.

Procedure if Applicant is Found Removable

Even if the allegations in an NTA are true, or admitted as true, one or more exceptions could apply that would allow the foreign national to obtain relief, or at least buy some time before being deported. These options include, but are not limited to:

1. Asylum: applicants who qualify as refugees, who cannot return to their home countries because of persecution, may be able to stay in the U.S. http://cis.org/asylum-system-checks-balances-dismantled
2. Adjustment of Status: applicants who are eligible for an immigrant visa as an adjustment of status from non-immigrant to lawful permanent resident may be eligible to have their immigration status adjusted by an Immigration Judge.  Additionally, in some circumstances, the attorney for DHS will join in a motion to terminate proceedings in order for the foreign national to pursue adjustment in front of the USCIS, rather than return to immigration court for further proceedings.
3. Cancellation of Removal: This is a form of discretionary relief available to certain lawful permanent residents or other non-permanent residents. Lawful permanent residents are eligible if they have been lawful permanent residents for at least 5 years and have resided in the U.S. continuously for at least 7 years after receiving their green card, and have not been convicted of an aggravated felony. 

Note:  Non-permanent residents may be eligible if they have been continuously present for at least 10 years in the U.S., have good moral character during that time, have not been convicted of an offense that would make them removable, and can demonstrate that removal would result in exceptional and extremely unusual hardship to direct family members who are U.S. citizens or lawful permanent residents. 

1. Stay of Removal: Prevents DHS from executing an order of removal, deportation, or exclusion. Individuals requesting an appeal before the Board of Immigration Appeals or Federal Court are often automatically granted stays of removal. 
2. Voluntary Departure: This is the most common means by which removable aliens may avoid deportation. Voluntary departure requires that the removable alien departs the U.S. at his or her own expense within 120 days of being granted voluntary departure. 
3. Prosecutorial Discretion: DACA is a form of Prosecutorial Discretion and has been announced as a reason to grant administrative closure or deferred enforced departure to those who qualify as a low-priority for enforcement of removal. http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf . TPS is also a form of discretionary relief, and may give rise to have an administrative closure of removal proceedings once TPS is granted, or may allow for a Deferred Enforced Departure if removability has already been determined. http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure  While there is no affirmative application process for filing for prosecutorial discretion, a foreign national may, through counsel, approach appropriate ICE or DOJ in an effort to secure an individualized relief of removal based on personal circumstances of the individual foreign national and his or her family in the US. The purpose behind the review of applications for prosecutorial discretion is that closure of these cases will allow for additional resources to be dedicated to enforcement priorities. By carefully reviewing prosecutorial discretion cases, DHS will save resources.  The justification for granting a case through an act of prosecutorial discretion is that DHS will devote these resources to more expeditiously pursuing the removal of threats to public safety and border security. https://www.ice.gov/doclib/about/offices/ero/pdf/immigration-enforcement-facts.pdf
4. Administrative Closure of the removal proceedings:  While this is not a true defense in that it does not relieve the foreign national of having issues of removability, the effect is to close the removal proceedings so that the end of the proceedings is not predicated on court’s schedule for an individual hearing on the merits, wherein an inevitable removal order awaits, and can be helpful for those foreign nationals who have an immigrant petition approved but not yet current, or for those who have humanitarian type issues that would be within the discretion of ICE to not pursue removal.
5. Termination of Proceedings:  In some cases, where a foreign national is an immediate relative (spouse, parent or unmarried child age 21 or younger of USC) to a US citizen, who can evidence that a USC spouse or USC parent will suffer extreme hardship if the visa is denied, already has an immigrant petition approved on his or her behalf, and have only unlawful presence as the sole issue of inadmissibility, the foreign national may still seek to have the removal proceedings administratively closed, and then terminated.  These are quite case specific and likely require the advice and review of an attorney in order to be able to determine eligibility. http://www.uscis.gov/family/family-us-citizens/provisional-waiver/provisional-unlawful-presence-waivers

Appeals 

Decisions made by an immigration judge may be appealed within 30 days of the decision by the immigration judge to the Board of Immigration Appeals (BIA).  Appeals may be based on an attack of the final decision by an immigration judge for deportation or removal cases, cancellation of removal, adjustment of status, waiver adjudications, determinations related to bond or detention, determinations concerning mandatory detention, or to continue detention beyond removal period, or for rescission of Adjustment of Status, determinations related to asylum or TPS, and decisions relating to LIFE ACT.

If an appeal at the BIA stage fails, federal courts may review some decision from the BIA. These cases are generally filed with the Federal Court of Appeal with proper jurisdiction.