Deportation Defense

Who can be subject to deportation proceedings?

Anyone who is physically present in the United States, but is not a U.S. citizen may be subject to removal proceedings.

What does the deportation process entail?

The removal procedure in an Immigration Court is a way for the government to deport a non-citizen of this country by forcing them to return to their country of origin.

Who is in charge of the deportation process?

ICE is the federal agency that removes foreign nationals from the U.S. who are subject to a final removal order issued by an Immigration Court or after an administrative removal review.

How does deportation proceedings normally start?

Many deportation proceedings begin with the arrest of an immigrant by local law enforcement or the U.S. Border Patrol. Arrested foreigners are generally turned over to ICE, which decides whether to take custody or initiate deportation proceedings.

What is the form to submit?

You will need to file Form 42B, Application for Cancellation of Removal and Adjustment of Status for Certain Non-Permanent Residents, and submit a copy of the application to the Office of the General Counsel (OGC) of the U.S. Immigration and Customs Enforcement Service (ICE).

What does an expedited removal process entail?

When an immigrant is arrested within 100 miles of the border and was inside the U.S. for two weeks or less, the person can be removed through expedited removal proceedings. People who have allegedly stayed longer after their visas have expired are often subject to deportation through expedited removal orders. During expedited removal, there is no right to a hearing.

What happens if the deportation process is not expedited?

When there is no expedited removal process, ICE will give the immigrant a Notice of Appearance. Immigrants that are arrested will appear before Justice Department immigration judges for bond hearings.

What is a calendar hearing?

The calendar hearing is a hearing in which a judge decides when the next hearing will take place and what defense against removal will be considered. While legal representation is not required for a calendar hearing, the appearance of the immigrant is critical as failure to appear may result in the issuance of an automatic removal order.

What does the process before the Immigration Court entail?

If you are in removal or deportation proceedings before the Immigration Court, you may qualify for some remedy that will subsequently lead you to legalize your immigration status in the U.S. and consequently obtain your Permanent Residence.

The circumstances for which you may be in this process are various, but the most common are:

  • Having been detained at the U.S. border for entering or attempting to enter without authorization.
  • Committed a crime.
  • Detained in an immigration raid within the U.S.
  • Violation of the admission agreement, such as staying longer after your visa has expired.
  • Document fraud.
  • Marriage fraud.
  • Failure to register, including change of address.

Before the immigration judge you can present your defense which will depend on your circumstances and your immigration history to determine what remedy you qualify for. These remedies can be:

  • Asylum, Immigration and Nationality Law (INA) – A person can apply for asylum because they were persecuted in their country because of sex, religion, nationality, political opinion or because they belong to a particular social group and if they return to their country that persecution will continue.
  • Withholding of Removal, INA – A person cannot be returned to a country where it is determined that there is a clear probability that his life or liberty will be threatened on the basis of race, religion, national origin, political opinion or membership of a particular social group.
  • Convention Against Torture – A person cannot be returned to a country where there is a clear probability that they will be subjected to torture at the instigation or with the acquiescence of a public official or someone acting in an official capacity.
  • Cancellation of Removal for Permanent Residents, INA – To file a Permanent Resident Petition a person must prove legal admission for permanent residence for not less than 5 years. Also, the person must prove 7 years of continuous residence in the U.S. after admission to any state and, that they don’t have a conviction for aggravated felonies.
  • Cancellation of Removal for Non-Permanent Residents, INA– Cancellation of Removal, for people who have been residing in the U.S. for more than 10 years, have had good moral character during that period, no convictions for crimes related to good moral character and, have a spouse, children, or mother/father who will suffer extreme and unusual harm if you are deported.
  • Violence Against Women Act (VAWA) – Allows a spouse, children, or mothers/fathers of children, who have been victims of abuse or subjected to extreme cruelty by their spouse or mother/father legal permanent resident (LPR) or U.S. citizen (USC) to obtain legal status without having to rely on a petition filed by the abusive person.
  • Immigrants who are Victims of Crime “U Visa”, INA – The U visa is for a person who has been the victim of a serious violent crime and provides law enforcement agencies with the ability to investigate and prosecute certain types of cases criminal offenses, including domestic violence, sexual assault, trafficking of foreign persons and other crimes. Victims must also be willing to work with local law enforcement and the crime must have occurred in the U.S., on U.S territory, or have violated U.S. law.
  • Adjustment of Status, INA – A person must show admission or parole in the U.S., eligibility to receive an immigrant visa, non-inadmissibility under article 212 (a) of the law, maintenance of legal status (unless they are an immediate relative of a USC), and that an immigrant visa is available immediately.
  • Registration, INA – A person must show entry to the U.S. before 1/1/1972, continuous residence from then on, good moral character (no specific period indicated), not ineligible for citizenship, and is not a criminal, immoral, subversive, smuggler, drug violator, or terrorist.
  • Waiver, INA – A person must show that they are a spouse, mother/father, child of USC or LPR; denial of the exemption would result in extreme hardship for the spouse, mother/father, child from USC or LPR; and the attorney general has consented to applying for a visa, admission, or adjustment of status.
  • Waiver, INA – A person must show that they are a USC or LPR spouse, mother/father, child and denial or waiver would result in extreme hardship for their USC or LPR spouse or mother/father.
  • Waiver, INA – Available only to lawful permanent residents seeking a smuggling exemption, who have smuggled, induced or assisted in the smuggling of their spouse, mother/father, child (and no one else) and that deserve discretion for humanitarian purposes to ensure family unity or other reasons of public interest.

What rights does a person have in deportation proceedings?

Any immigrant person has very specific rights; these include (1) the right to legal representation, (2) the right to a hearing and (3) the right to an interpreter. While they are entitled to legal representation, unlike individuals with U.S. citizenship, the government will not provide it at their expense.

If the decision is not in your favor, can you appeal it?

When a person disagrees with the decision of the immigration judge at the conclusion of their removal proceedings, the person can appeal the decision to the Board of Immigration Appeals.

What benefits will the person have from winning their case?

If you win your cancellation of removal case, you are entitled to numerous benefits, including but not limited to:

  • A green card.
  • The right to live and work in the U.S. without the need for an employment authorization card.
  • Eligibility for need-based government assistance such as welfare, Medicaid and food stamps, and Supplemental Security Income if you are disabled.
  • Social Security card.

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