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REMOVAL & DEPORTATION

Any individual who does not have a legal right to be in the US is subject to deportation (now called removal.) This may be the result of many different factors. Obviously, an individual who entered the US illegally is subject to deportation. In much the same way, a person who entered legally and was given a limited period of time to remain in the US is subject to deportation if the individual remains beyond the allotted time. An individual, even one with a green card and many years of legal residence, can be deported for the commission of certain crimes.

But someone can be subject to deportation for a number of less obvious reasons. A student who drops a class may be subject to deportation. A professional worker with an H1B who leaves or is dismissed from his/her employment may be subject to deportation. An individual who obtains a green card through marriage to a US spouse and leaves or divorces that spouse within the first two years of marriage can be subject to deportation. The list of deportable offenses is very long.

Removal Procedures

Removal (or deportation) proceedings are started by the issuance of a set of written charges or accusations called a notice to appear (or NTA.) This document must be served on you (the immigrant) and on the immigration court. The NTA contains a time and place to report to the immigration court. Failure to report to court on that date will usually result in the issuance of a deportation order in your absence (in absentia.)

Sometimes the immigration police (Immigration and Customs Enforcement or ICE) will arrest and detain the individual; sometimes the NTA is served by ordinary mail. If you are arrested, you will be given the right to make phone calls after you are processed (during which process ICE takes fingerprints, performs a name search etc.) ICE will then determine whether to release you. If they release you, they will usually require a bond to ensure that you report to court. In certain cases, ICE will release you but require that you wear an electronic ankle “bracelet” that allows them to track you. In some cases, ICE will refuse to release you and you will be held until you can be brought before an immigration judge.

When you appear before an immigration judge, you are entitled to be represented by an attorney but since deportation is not considered a criminal proceeding, you must arrange for and pay your own attorney. The immigration court will provide you with a list of agencies or individuals in your area who will provide free or low cost legal representation.

If you are detained, your first appearance before the judge will usually be for a bond hearing. In these cases, a judge will determine whether you should be release while your proceedings are pending. If the judge decides you can be released, the judge will set bond, starting as low as $1500 but sometimes as high as $25,000 (or higher.) Sometimes a judge does not have the legal authority (called jurisdiction) to set bond. This generally occurs if you have committed certain crimes in the US or if your last entry into the US was on “advance parole.” In that case, you will remain in jail until ICE agrees to release you or your case is concluded. If you are detained, ICE has the authority to move you to a different jail at a location far away from where you were arrested, depending upon available bed space.

If you are released on bond (or no bond was required) your initial immigration hearing is called a Master Calendar. At this hearing you will have the right to contest the charges against you and explain to the judge why you should be allowed to remain in the US. This is a brief hearing, usually last less than 30 minutes. You will be given additional time to prepare and file applications which you believe will entitle you to prevent your deportation and remain legally in the US. The matter will then be set down for a full hearing, known as an Individual or Merits Hearing. There are many reasons why a person in deportation may choose to fight those proceedings (including asylum or withholding of removal, cancellation of removal, adjustment of status, etc.) and many factors that go into deciding whether to exercise those rights or not. Often, an individual will give up their right to contest deportation or removal proceedings if they are required to remain in detention during these proceedings.

Currently, most contested removal cases are taking between 6 to 12 months when the individual is detained and up to four years (and sometimes longer) when the individual is released on bond.

Recent Changes in Government Policy

Changes in U.S. policy now give local immigration offices greater flexibility in determining who to deport from the US and who can remain under a variety of discretionary policies. Some deportable immigrants are even given work authorization.

Since June of 2011, US immigration officials have been somewhat less aggressive in deporting immigrants from the US whose only offense is to be in the US without authorization. Instead, immigration officials have concentrated on removal of criminal immigrants. This policy is being enforced in a variety of ways; noncriminal immigrants are less likely to be placed in removal proceedings and those that are in proceedings can sometimes have their cases suspended through a policy known as Administrative Closure or dismissed entirely through a policy known as Termination of Proceedings. Even some immigrants who are under a deportation order can have that order halted or “stayed” and be entitled to remain in the US and obtain employment authorization. But this new policy is not being uniformly enforced throughout the US or even in the same district office.

For those with criminal records- even relatively minor convictions- the new policy means greater scrutiny and tougher enforcement. This applies to illegal immigrants and longtime permanent residents as well. Some immigrants who have been convicted of “aggravated felonies” will face almost certain deportation but others may still be able to apply for some forms of discretionary relief. Again, these policies and their enforcement will often differ from district to district and judge to judge. Having an attorney who knows the law and the judge is often critical!!

For those with past deportation orders, this policy means the government may be willing to reopen the prior immigration case under the right circumstance in order to give certain deserving immigrants a new opportunity to obtain immigration benefits.

Frequently Asked Questions

Q. If I am picked up by immigration, will I be released while my case is pending with the court?

The answer to that will depend on many factors, including:

  • Were you arrested because of a criminal arrest or conviction or simply because you are unlawfully present in the US?
  • Do you have a prior deportation or removal order?
  • Do you have family ties in the US, such as a US spouse, children or parents and are you responsible for their financial support?
  • Do you have serious medical issues?
  • Do you have a legitimate claim to remain in the US such as an asylum or cancellation claim?

All of these factors can enter into a determination by ICE or the immigration judge to release you. Most often, in order to be released, you will need to pay a bond to ensure that you return to court. Bond amounts start at $1500 and can go up above $25,000. Most bonds range from $5,000 to $10,000. If you show up for court as requested, the bond money is returned at the end of the proceeding.

Q. Can I be denied bond all together?

Yes. If you have committed certain crimes, you may be subject to mandatory detention and you may ineligible for bond. Also, if you have previously been deported you may be ineligible for bond. Finally, if your last entry into the US was on advance parole, you are at the mercy of ICE and the immigration judge does not have the power (jurisdiction) to set bond.

Q. How long can immigration hold me?

Until your case is completed. In many instances that can take many months or even years.

Q. Does it make sense to fight my deportation?

Only you can make that decision, hopefully after consulting with an experienced immigration attorney. Many individuals are surprised to find that they do have a basis to contest their deportation and that these proceedings will often take many years during which time they can stay in the US and often obtain work authorization. Obviously, these calculations are very different if you are detained during these proceedings. Finally, good legal representation can be expensive.

Q. My boyfriend was arrested by immigration on Long Island and he is now being held by immigration in Pennsylvania. Is this legal?

Yes. Immigration can transfer detainees anywhere in the US where they have available bed space. Current policy is generally to retain detainees in the jail in the general vicinity of the arrest. But this is not always the case, particularly if your boyfriend was arrested by immigration after conviction of a serious criminal offense.

Q. My son was recently picked up by immigration and I have not heard from him. How can I find him?

ICE has established an online locator at www.ice.gov/locator

Q. What is Administrative Closure?

It means that the government has decided to suspend or halt your removal proceedings. Effectively your case is closed but not terminated.

Q. What is the difference between a case that is terminated and one that is administratively closed?

When a case is terminated, it means the case is dismissed. In order to deport you, the government must start new removal proceedings from the beginning. When a case is administratively closed it means the government can restart the case in the future, effectively picking the case up again from where it was suspended. The difference can be critical in certain situations. For example, an immigrant who marries a US citizen while in removal proceedings will need to have the case terminated (not administratively closed) in order to receive a green card. Similarly, an immigrant who has a deportation order and later marries an American citizen will have to have his deportation case reopened and then adjudicated by an Immigration Judge or terminated before that immigrant can proceed to obtain a green card.

Q. What is the advantage of having my case administratively closed?

It will stop you from being deported. Generally you would prefer to have the case terminated, but not always. Sometimes, when a case is administratively closed, it allows the individual in proceedings (called the “Respondent”) to obtain certain benefits, including employment authorization. That relief is not always available if your case is terminated.

Q. How can I get work authorization if I am currently in removal proceedings or already have a removal order?

This is a complicated question that depends on why you have been put into removal proceedings or why a deportation order was previously entered against you. It may also depend on your personal circumstances as we discuss below. The point here is that in certain cases, the government has the discretion to not deport you and instead issue you work authorization even if you have already been ordered deported.

Q. How do I know if I qualify to have my case terminated or administratively closed?

The key is to get the government’s cooperation to use its “prosecutorial discretion.” In June of 2011, John Morton, Director of Immigration and Custom Enforcement (ICE- the immigration police) issued a new policy memorandum that states that “prosecutorial discretion” will be used to concentrate on detaining and removing immigrants with serious criminal convictions and halt the deportations of immigrants with community ties, family relationship or a military service record. In June of 2012, Janet Napolitano, former Secretary of the Department of Homeland Security (DHS) followed that up with her own memo, confirming and expanding the discretionary policy.

In determining whether to use prosecutorial discretion, the government will consider multiple factors, including:

  • An immigrant’s length of presence in the U.S.
  • The manner of the immigrant’s arrival
  • Whether the person has pursued educational opportunities in the U.S.
  • An immigrant’s family ties in the U.S.
  • The immigrant’s health and/or the health of US relatives
  • The immigrant’s ties to the community
  • The immigrant’s age, with particular consideration given to minors and the elderly
  • Whether the immigrant is the primary caregiver or primary means of support for U.S. residents or citizens
  • Military service
  • The immigrant’s prior immigration history, including prior removal orders, denial or prior applications and evidence of fraud
  • The immigrant’s prior criminal history, including prior arrests, convictions, or outstanding arrest warrants

Q. What is meant by reopening a deportation or removal order?

When ICE believes you are unlawfully present in the United States, it starts a process now known as removal proceedings (and previously known as deportation proceedings.) You will be served with a Notice To Appear (NTA) which is filed with the immigration court to start the process. The NTA outlines the charges against you which ICE believes makes you removable. Eventually, the immigration judge will determine whether you should be removed or allowed to stay. If the judge determines you should be removed or you do not go to court when you are told to, a removal order will be issued against you. A motion to reopen a deportation or removal order seeks to stop your removal and bring the case back before the judge.

Q. Are there rules about how and when a deportation or removal order can be reopened?

Yes, and the rules are pretty complicated. Much of it will depend on whether the order was entered against you after a hearing or after you failed to show up in court when you were told to appear. It will also depend on whether the government properly notified you of the time and place of your court hearing. Most often, the rules require that you try to reopen your deportation or removal order within a very limited period of time after the order is issued. Clearly, the simplest way to reopen a removal or deportation order is with the cooperation of the government.

Q. What are the time periods?

A motion to reopen can only be done once and must be filed within 90 days of the issuance of the order. There are exceptions for “exceptional circumstances” or if the government failed to follow proper procedures in notifying you of the time and place to appear in Court.

Q. Can I still reopen my deportation or removal order if the time period has expired?

Generally, you will need the cooperation of the government’s lawyers to reopen a deportation or removal order if the time period has expired. This is why the recent “Morton memo” is so important. It sets out new standards which should make it easier for some people to successfully reopen their deportation or removal orders.

Q. Am I a good candidate to reopen my deportation or removal order?

It is impossible for anyone to answer that question without reviewing all of the facts and circumstances about your immigration history. Certainly, the best candidates are those who have:

  • At least two or three of the positive factors set out in the Morton Memo and
  • None of the negative factors set forth in the memo and
  • A strong case to be made to the Court for some form of relief in the event the government agrees to reopen your case. This means that you are a strong candidate for adjustment of status, Cancellation of Removal, or political asylum or withholding of removal.

Q. What does it mean to be a strong candidate for adjustment of status, Cancellation of Removal, or political asylum or withholding of removal?

Adjustment of Status is a process by which an individual can become a permanent resident through the sponsorship of an employer or close family relative. Cancellation of Removal for those who are not already permanent residents allows individuals in removal proceedings to obtain a green card if they have lived in the U.S. for more than ten years, are persons of good moral character, and their removal “would result in exceptional and extremely unusual hardship” to the applicant’s “spouse, parent, or child” who is a U.S. citizen or permanent resident. Political asylum or withholding of removal involves persons with a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.”

Obviously all of these forms of relief should be reviewed very carefully with your immigration attorney. The point here is that it makes no sense to reopen your deportation or removal order if you have no form of relief available. The judge is just going to order your removal all over again.

Q. Who should not try to reopen their deportation or removal orders?

Certainly, people who fall into the following groups should not expect any favorable consideration by ICE:

  • Serious felons, repeat offenders, or individuals with lengthy criminal records
  • Known gang members
  • Persons with a record of serious immigration violations including those with a record of illegal re-entry and those who have engaged in immigration fraud.
  • Persons with no opportunity for receiving an immigration benefit if the case is reopened.

Q. Do I have any chance of avoiding deportation if I have a criminal conviction?

That depends on your personal circumstances and the crime for which you were convicted. Permanent residents convicted of crimes generally have greater rights than undocumented immigrants. Obviously the crime for which you were convicted will also be a deciding factor. Crimes of violence, sexual offenses, drug or firearms sales, and significant theft or fraud offenses (often called Crimes Involving Moral Turpitude) can make it very difficult to avoid deportation and may even constitute an aggravated felony.

Q. What is an Aggravated Felony?

An offense need not be “aggravated” or a “felony” under state law to be considered an “aggravated felony” for purposes of US immigration law. Instead, an “aggravated felony” is any crime that Congress decides to label as such. As two prominent immigration judges recently noted, numerous “non-violent, fairly trivial misdemeanors are considered aggravated felonies under our immigration laws.”

Today, the definition of “aggravated felony” covers more than thirty types of offenses, including simple battery, theft, filing a false tax return, and failing to appear in court. The list of aggravated felonies includes the following (in summary):

This list includes, in brief summary:

  • murder
  • rape
  • sexual abuse of a minor (which can include statutory rape)
  • drug trafficking
  • trafficking in firearms or destructive devices
  • various other offenses concerning firearms or explosive materials
  • racketeering
  • money laundering of more than $10,000
  • fraud or tax evasion involving more than $10,000
  • theft or violent crime with a sentence order of at least one year
  • perjury with a sentence of at least one year
  • kidnapping
  • child pornography
  • trafficking in persons or running a prostitution business
  • spying, treason, or sabotage
  • commercial bribery, counterfeiting, forgery, or trafficking in vehicles
  • failure to appear in court on a felony charge for which a sentence of two years in prison may be imposed
  • alien smuggling, and
  • obstruction of justice, perjury, or bribery of a witness, if the term of imprisonment was at least one year.

Q. If I am a permanent resident can I still be deported for an aggravated felony?

Yes. As a permanent resident you will face almost certain deportation if you are convicted of an aggravated felony. (Although- surprisingly enough- you may still avoid deportation if you are not a permanent resident.) For less serious crimes, being a permanent resident will generally allow you to apply for discretionary relief, depending upon how long you have lived in the US, your family in the US, your employment, medical history and other factors.

Q. If I have been convicted of an aggravated felony do I have any hope of avoiding deportation?

Generally, you can avoid deportation only if (1) it is impossible to deport you to your native country or (2) you are illegal in the US and eligible for adjustment of status (A process that allows individuals who entered the us legally to get a green card if they are married to an American citizen or are the parent, of a US citizen over 21.)

Q. What should I do?

A Consult with your attorney.