GTHOMAS
Sun, Oct 21, 2018

Detention & Removal Defense

DETENTION:

The agency in charge of immigration enforcement was known as the Immigration and Naturalization Service. It is now known as Immigration and Customs Enforcement (I.C.E.)which is a bureau within the Department of Homeland Security. This section discusses the most frequent ways in which people are identified and detained by immigration authorities and how we may be of assistance.

Have you been stopped at the airport after traveling abroad?

Upon re-entering the United States, all noncitizens have to go through immigration inspection. Many have traveled to their home countries in the past without any problem, but the government now regularly updates its computers at airport inspection. The computers have access to criminal records and prior orders of deportation. There is no statute of limitations under the immigration laws and you may be stopped for convictions that occurred many years ago. If you have a criminal conviction you should consult a reputable immigration practitioner before traveling abroad to make sure that you will be able to re-enter the United States without a problem.

Interviewed While in Jail:

The I.C.E. has officers at jails and state prisons.

You will likely be interviewed by an ICE agent, and will be asked about your immigration status. You may not even realize that ICE was interviewing you. You will be placed into removal proceedings if there is a basis under the immigration laws to do so. The ICE officer will first place a “detainer” on you. Once you have completed your time in prison or jail, you will be transferred to ICE custody. Federal law says that state and local law enforcement authorities may only hold persons on immigration detainers for 48 hours after the completion of their jail time. This means that once you have completed your jail time, the immigration officials must take you into custody within two days. If they do not, you should contact your criminal defense lawyer and ask him or her to file a writ of habeas corpus with the state court demanding your release.

Immigration Applications: Most, if not all, applications to the United States Citizenship and Immigration Services (USCIS), another agency within the Department of Homeland Security, now require security clearances and/or fingerprints as part of the application process. This includes applications for citizenship, renewal of green cards, employment authorization documents and even “status inquiries” to USCIS. USCIS now uses very sophisticated databases for their security clearances which identify old criminal convictions from anywhere in the U.S. When fingerprints are taken, USCIS gets a list of all your arrests and convictions. If you have a conviction that makes you removable, your application is likely to be denied and you very likely will be placed in removal proceedings.

Prior Orders of Deportation: ICE has a campaign to pick up persons living in the United States who have orders of deportation. Some people may not even know that they have been ordered deported or they may think that because the deportation order was entered many years ago it is no longer a problem. If you were ever in immigration court proceedings before but did not return to court, you may have been ordered deported in your absence.

REMOVAL PROCEEDINGS:

The Notice to Appear or NTA is the document the government gives you and the court to explain why you should be removed from the United States. The NTA starts the case against you. ICE must give you the NTA within 72 hours of your detention. The NTA is divided into two parts. The first part which is labeled “ALLEGATIONS” has your name, the country you are from, and the date and manner you entered the United States. It also gives the factual basis or reason for your removal. The second part is called “CHARGES.” It lists the sections of the law under which you may be removed.

Very often non-citizens (aliens and permanent residents) are placed in Removal Proceedings, a legal term referring to the legal process of removing or deporting the respondent from the United States , due to various issues including overstaying an approved visa, violations, denial of immigrant petitions, criminal convictions, and other problems.

Immigration Relief is a term referred to in the U.S. Immigration Courts that allows a non-U.S. citizen to remain in the United States .  Some of the most common forms of relief are to the left of this screen.  Please browse through the forms of relief, and see if any of them apply to your specific situation. 

Removal (formerly known as ‘deportation') is the process by which Immigration and Customs Enforcement (ICE) of the U.S. Department of Homeland Security (DHS) attempts to remove non-citizens from the United States.

WHO IS PLACED INTO REMOVAL PROCEEDINGS?

USCIS initiates removal proceedings against many types of non-citizens, including:
  • Aliens who entered the U.S. without going through Immigration inspection at the border, whether by crossing the U.S. border illegally from Canada or Mexico or by use of fraudulent documents;

  • Aliens attempting to enter the U.S. and who USCIS believes should not be entitled to enter (because they do not have a visa, they have fraudulent travel documents, or other reasons);

  • Temporary visa holders who entered the US legally and stay in US after their visa expires;

  • Applicants who apply for immigration benefits such as permanent residency or political asylum, or Naturalization (to become a US citizen) and are denied by Immigration;

  • Green Card holders who violated immigration laws, such as committing crimes in the US .

  • Green Card holders who remained outside of the US for extended periods of time and re-entered into U.S.

What are the Basic Requirements of Removal Proceedings?

The respondent must be given proper notice of the process by the USCIS and may choose to be represented by an attorney. The Government has no obligation to provide the attorney for the alien.

The respondent may ask for relief from removal/deportation.

The respondent must have the opportunity to defend in his case, present evidence and testimony, and examine the evidence against him. The evidence against the respondent must have been obtained in a proper and legal way.

The decision to remove or not to remove the respondent must be based on "reasonable, substantial, and probative evidence."

How are Removal Proceedings Initiated?

Removal proceedings begin with the service of the Notice to Appear (NTA) unto the Respondent – by mail or in person. The law requires the NTA to have been served upon the respondent in a proper and timely manner.

An alien who receives the NTA is strongly urged to contact an attorney for legal assistance. The NTA often lists a specific time and place to appear in front of an Immigration Judge and the respondent must attend at that hearing or risk receiving an order of deportation in absentia (in his absence – by default).

Immigration Court Hearings in Removal Proceedings

Master Calendar Hearings

The Master Calendar Hearing is generally the respondent's first appearance in Immigration Court . The Master Calendar is a preliminary hearing to review the charges in the NTA before an Immigration Judge and give the respondent an opportunity to request relief from removal, i.e., Asylum, Withholding of Removal, Relief under CAT, cancellation of removal, stay of deportation, and/or administrative closure where appropriate. These hearings almost always have several respondents appearing before the judge and the judge's case roster may include at least ten respondents depending on which Immigration Court the respondent appears in geographically. For example, some judges in the New York, New York Immigration Court (at 26 Federal Plaza, NYC, NY), oftentimes have a case roster of 30 respondents on the 8:30 am to 11:00 am Master Calendar hearings schedule several times a week. On the other hand, the upstate New York Court may have less than 10 on certain days.

During each hearing, the Immigration Judge must explain to the respondent in respondent's native language the respondent's rights (for example, the respondent's right to have the hearings conducted in his native language if other than English).

If the respondent is not ready to proceed at the first or even at the second Master Calendar Hearing, for example, if he needs some time to hire an attorney, the respondent must ask the judge for a continuance with "good cause".

If the respondent is ready to proceed at this Hearing, with or without an attorney, the judge will ask if the respondent agrees or denies the charges against him listed in the NTA. If the respondent does not agree with the charges, he can and should deny the charges and ask the government to prove its case against him.

The Immigration Judge will determine if the non-U.S. citizen is eligible for any form(s) of relief, and set a date for the Individual Merits Hearing. During all immigration court hearings, the respondent's adversary is always the Office of

A respondent may have to appear at two or more Master Calendar hearings before the Court schedules an Individual Hearing

Individual Hearing (Merits Hearing)

The Individual Hearing is a court hearing where the government must prove the charges alleged in the NTA fully. The judges usually allot at least 2 hours for such a hearing. The non-U.S. citizen must be able to present his or her case to the Immigration Judge with witnesses, evidentiary documents, and expert testimony in his favor and persuade the Immigration Judge to use his or her discretion and allow the non-U.S. citizen to remain in the United States (if such relief exists).

At the conclusion of the removal proceedings, the Immigration Judge will determine if the non-U.S. citizen should or should not be removed from the U.S. The Immigration Judge will issue a final order in each removal case.

Orders Granting Relief and Consequences of the Order of Removal

An Immigration Judge may grant the respondent relief from removal such as granting Asylum, Withholding of Removal, Relief under CAT, cancellation of removal, stay of deportation, and/or administrative closure where appropriate. This means the respondent won his case against the government and may remain in the U.S. legally. For asylum grantees, they may seek to adjust to permanent residence within a short period of time.

An Immigration Judge may also grant to the respondent an Order of Voluntary Departure if the NTA was served upon the respondent after his presence in the U.S. for longer than 1 year and in the absence of any arrests, convictions and with a showing of good moral character by respondent. This means that the respondent may leave the U.S. within the time allotted in the order without having the 3-year or 10-year bar penalty for re-entry into the U.S.

If the Immigration Judge orders "removal" in the non-U.S. citizen's case, the respondent loses his privilege to remain in the United States . If this is the non-U.S. citizen's first order of removal, the non-U.S. citizen cannot legally return to the United States for at least ten years or more depending on the specific case. If the non-citizen was convicted of an aggravated felony, he or she may never be able to return to the U.S.

Removal Proceedings are highly complicated legal matters, and all respondents are strongly urged to seek legal advice before appearing in Immigration Court.

Call Us for an Appointment (888) 876 7539

Helpful U.S. Immigration Links

uscisLogo
Here you will find many helpful links to the U.S. Department of Homeland Security Citizenship & Immigration Services.