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Immigration Removal and Deportation Proceedings
I am in the midst of deportation proceedings, what should I do? Is there any defense to removal proceedings? Are you or someone you know at risk of getting deported? If so, you probably have a lot to worry about and have many questions. At Saland Law, we understand this, and we are prepared to help you with your removal and deportation legal issues.
There are a variety of steps you can take to stop or delay removal proceedings. However, you will need an experienced immigration attorney to help you through the process.
Why Am I Subject to Deportation or Removal Proceedings?
There are many reasons to explain why US Immigration and Customs Enforcement (ICE) has begun removal proceedings against you. You may have improperly entered the United States, might have an expired visa, or you maybe you were arrested for a crime that can result in removal. Some of the potential grounds for removal include:
- Conviction of certain serious crimes, such as an “Aggravated Felony”, alien smuggling, terrorism, money laundering or drug offenses
- Marriage or document fraud
- Failing to update the US Citizenship and Immigration Services of a change of address
- Improperly receiving government assistance
It doesn’t matter if you properly obtained your visa or Green Card; you are still subject to removal if you do not comply with all the terms of your stay in the United States.
- New York State Criminal Defense
- Federal Criminal Defense
- Immigration Consequences: From Arrest to Criminal Conviction
Depending on why ICE believes you should be removed, as well as the facts surrounding your stay in the United States, you may have certain defenses to stop or delay your removal.
The Deportation and Removal Process in Immigration Court
The removal proceedings will take place in immigration court, before an immigration judge. The Executive Office for Immigration Review (EOIR) runs the immigration courts.
The process begins when ICE issues a Notice to Appear (NTA). This is a document that sets forth the legal reasons for the removal. It will be sent to the individual facing possible removal (also known as the respondent).
A few weeks after the respondent receives the NTA, they will be sent a hearing notice, letting them know when their first hearing date is (although sometimes this hearing date is stated on the NTA). It’s extremely important that the respondent appear for this first hearing date. If they do not, they may give up certain legal defenses and face other severe consequences. For example, the respondent may be prohibited from getting another visa for 10 years.
The first hearing is the master hearing (it’s sometimes referred to as a Master Calendar Hearing) where the respondent will stand before an immigration judge and answer the charges. The respondent may have legal representation at this time, at his or her own expense.
Master hearings are usually really short and preliminary legal matters may be discussed, such as changing court to a more convenient location for the respondent or getting more time for the respondent to find an attorney. If the respondent intends to challenge the legal basis for removal, the respondent will declare this at the master hearing and a second hearing will be scheduled.
At the second hearing, also called an individual hearing or a merits hearing, ICE will present its case as to why the respondent should be removed. The respondent will then set forth defenses as to why he or she should not be removed. Depending on the complexity of the legal issues, the merits hearing can take anywhere from a few hours to several months to complete.
When the merits hearing is completed, the immigration judge will usually make his or her decision in open court, although sometimes they will take some time to write a legal opinion and then make the decision when the opinion is released.
After the decision has been made, the respondent or ICE can challenge the immigration court’s decision. That can be done by either filing a motion with the immigration court or filing an appeal to the Board of Immigration Appeals. The appeals process can take several months to finish.
Defenses against Deportation or Removal
The actual defenses raised during a merits hearing will depend on the specific facts surrounding the respondent’s case, but can include:
Cancellation of removal: Depending on the immigration status of the respondent, if certain conditions are met, they can have the removal proceeding permanently stopped. These conditions include: respondent has lived in the United States for a certain period of time, not been convicted of any serious crimes, is of good moral character and can prove removal would result in extreme hardship to a close relative who is a US citizen or legal permanent resident.
Modification of immigration status: The respondent can change his or her immigration status, usually to that of a Green Card holder. This is allowed only in limited situations. Modification of immigration status is not available if the respondent entered the United States illegally, violated terms of the visa or failed to appear before the immigration court after receiving an NTA.
Asylum: A respondent can obtain asylum status if he or she can be considered a refugee. Basically, if the respondent can prove being sent back to their home country will result in persecution, they may be eligible for refugee status.
Prosecutorial discretion: ICE cannot prosecute every individual who may be in the United States illegally. Therefore, ICE may agree to put an individual’s case on indefinite hold if that person isn’t a public safety risk or is otherwise not a threat to society.
Asking the court for voluntary departure is another legal option. Basically, this means asking the court to allow the individual to leave the United States on his or her own, instead of being officially deported or removed. While this doesn’t sound like a good thing since the individual still has to leave the country, it avoids a removal court decision. If someone has a removal court decision on their record, it can be very difficult to reenter the United States if they choose to do so.
The above arguments and defenses are not an exhaustive list and can be difficult to understand. It is strongly recommended that you hire an immigration attorney to help you through any potential deportation or removal proceedings. You may only get one chance to change the trajectory of your life.
Call the New York immigration lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.