Deportation Removal and Defense
Immigration & Nationality Law
The U.S. Department of Homeland Security (“DHS”) can commence removal proceedings against foreign nationals determined to be removable under one of the grounds of deportability or inadmissibility set forth in the Immigration and Nationality Act (“INA”). Removal proceedings are commenced by the filing of a Notice to Appear with an Office of the Immigration Judge, an entity within the Executive Office for Immigration Review (“EOIR”) of the U.S. Department of Justice. Removal proceedings may be commenced against lawful permanent residents (“LPR”), on various grounds, including, but not limited to: (1) criminal convictions which make an LPR removable; (2) fraud or misrepresentation when the LPR applied for LPR status; or (3) abandonment of LPR status. The DHS can commence removal proceedings against individuals who entered the United States in nonimmigrant status on various grounds, including, but not limited to, overstaying their period of nonimmigrant status or violating the terms of their nonimmigrant status. The DHS can commence removal proceedings against undocumented immigrants who entered the United States without inspection on that basis as well as on other grounds.
An initial issue of concern in any removal hearing is whether the DHS will detain the foreign nationals served with a Notice to Appear during the pendency of removal proceedings. Foreign nationals classified as “arriving aliens” based on the circumstances of their arrival at a U.S. Port of Entry may be detained or released on parole. That determination can be made at the Port of Entry or later at a deferred inspection held at a U.S. Customs and Border Protection (“CBP”) Deferred Inspection Office. The decision by the DHS to detain a foreign national who is considered an “arriving alien” during removal proceedings may not be reviewed by an Immigration Judge. Foreign nationals who are not considered to be “arriving aliens” may be issued a Notice to Appear commencing removal proceedings without being detained or can be in detained with or without bond. Some foreign nationals are subject to mandatory detention during removal proceedings on account of their criminal record. An Immigration Judge can determine whether a detained alien who is not an “arriving alien” is eligible to be released on bond and if so, the amount of the bond. The custody determination of an Immigration Judge may be appealed to the Board of Immigration Appeals (“BIA”).
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A removal hearing consists of 3 separate parts: (1) the determination whether the foreign national is removable; (2) the determination whether the foreign national is eligible for relief from removal; and (3) if a foreign national is determined to be removable and ineligible for relief from removal, the determination as to the country to which the foreign national will be removed.
If a foreign national contests his or her removability, ICE generally has the burden of proving that a foreign national is removable as charged in the Notice to Appear.
Once the Immigration Judge determines that a foreign national in removal proceedings is removable, the Immigration Judge will determine whether the foreign national is eligible for relief from removal. Generally, a foreign national in removal proceedings has the burden of proving their eligibility for relief from removal. Depending on the specific facts and circumstances, a removable alien may be eligible to apply for one or more forms of relief from removal, including, the following:
- Adjustment of Status: An Immigration Judge may in his or her discretion grant adjustment of status to LPR status based on a removable foreign national’s eligibility for adjustment of status as the beneficiary of an approved petition qualifying him or her to apply for immigrant status as an immediate relative of a U.S. citizen, a family-based or employment-based preference or on the basis of another INA provision. In adjudicating an application for adjustment of status, the Immigration Judge can decide whether to grant a waiver of any applicable grounds of inadmissibility which are waivable.
- Petition to Remove Conditions on Residence: An Immigration Judge can grant a Form I-751, Petition to Remove Conditions on Residence, to a foreign national whose Form I-751 Petition has been denied by the United States Citizenship and Immigration Services (“USCIS”);
- Cancellation of Removal of Certain Lawful Permanent Resident: An Immigration Judge may in his or her discretion allow a removable LPR to maintain their LPR status if the LPR meets the following requirements:
- Been an LPR for at least 5 years;
- Resided continuously in the United States for at least 7 years after been admitted in any status and prior to the issuance of the Notice to Appear or the date certain criminal offenses were committed;
- No convictions for a crime classifiable as an aggravated felony.
- Cancellation of Removal of Foreign Nationals who are Not Eligible for LPR Cancellation of Removal: An Immigration Judge may in his or her discretion grant cancellation of removal to a deportable foreign national who meets the following requirements:
- At least 10 years of physical presence in the United States prior to the issuance of the Notice to Appear or the date certain criminal offenses were committed;
- Been a person of good moral character as defined in the INA for at least ten (10) years;
- The absence of any conviction while would make the foreign national removable or deportable; and
- Proof that removal of the foreign national would result in exceptional and extremely unusual hardship to his or her U.S. citizen or LPR spouse, parent, or unmarried child under the age of 21.
- A waiver under Section 237(a)(1)(H) of the Immigration and Nationality Act (“INA”) if a foreign national previously granted LPR status is placed in removable proceedings as a result of a fraud or misrepresentation in obtaining his or her LPR status: An Immigration Judge may in his or her discretion allow an LPR in removal proceedings as a result of a fraud or misrepresentation in applying for his or her LPR status to maintain their LPR status. To be eligible for relief under Section 237(a)(1)(H), a LPR who is removable on account of such a fraud or misrepresentation must be spouse, parent, son, or daughter of a U.S. citizen or LPR and must have been otherwise eligible for LPR status.
- Asylum, Withholding of Removal, or Relief Under the Convention against Torture: An Immigration Judge may grant asylum, withholding of removal, or relief under the Convention against Torture to a removable foreign national who meets the statutory requirements for such relief.
- LPRs who are considered to be arriving aliens may apply in removal proceedings for certain statutory waivers of the grounds of inadmissibility arising out of criminal conduct or another basis without having to apply for adjustment of status.
- Voluntary departure from the United States in lieu of removal
An Immigration Judge can order the removal in absentia of a foreign national who does not appear for his or her removal hearing. A foreign national ordered removed in absentia can move to reopen the removal proceedings anytime if the foreign national did not receive the notice of the proceedings as required by the INA or was in Federal or State custody on the date of the in absentia hearing or within 180 days of an in absentia order if the foreign national demonstrates that he or she failed to appear as a result of exceptional circumstances as defined in the INA.
During President Obama’s terms of office, the DHS and the EOIR exercised their discretion to administratively close removal proceedings against removable foreign nationals. Under President Trump the federal government has announced its intention to reopen removal proceedings in the cases of foreign nationals whose removal proceedings were administratively closed. Notices of the recalendered removal proceedings will be sent to foreign nationals at the last home address given to the EOIR or the office of the attorney whose appearance as counsel is on file with the EOIR. Foreign nationals whose removal proceedings were administratively closed who fail to appear for their removal proceedings will be ordered removed in absentia.
A decision of an Immigration Judge finding a foreign national to be removable from the United States, denying a foreign national relief from removal, or ordering a foreign national to be removed may be appealed to the BIA. The decision of the BIA may be appealed to the applicable U.S. Courts of Appeals. Foreign nationals who timely appeal orders of removal to the BIA cannot be removed from the United States unless the BIA affirms the Immigration Judge’s decision. The U.S. Courts of Appeals may stay the removal of a foreign national whose removed has been upheld by the BIA during the pendency of an appeal to the Court of Appeals.
Foreign nationals who have previously been deported or removed from the United States may have their deportation or removal reinstated without having new removal proceedings commenced them. Foreign nationals subject to reinstatement can challenge the reinstatement of their prior deportation or removal by demonstrating they have a credible fear of persecution or torture. Foreign nationals who return illegally to the United States after having deported or removed may be charged with a felony for having reentered after deportation or removal and if convicted, may be sentenced to lengthy prison terms.
HSPRD attorneys have extensive experience representing foreign nationals in removal proceedings. To schedule a consultation concerning representation of a foreign national in removal proceedings, please contact our Firm at 312-239-7676.
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