Jamaica Magazine

The US Deportation Process – Removal Proceedings

Written by Nadine A.Brown

If an Immigration violator is apprehended by the US Border Patrol or Immigration and Customs Enforcement Officer, then he or she is placed in removal or deportation proceedings. In addition, many are placed in removal proceedings because of a failed Immigration application. These individuals are issued Notices to Appear in Immigration Court by the US CIS adjudications officer. Thus, many people end up in removal proceedings because of some of the following actions beginning with the most common: illegal entry by land, sea or airport; improper application for extension of non-immigrant visa status; ineligibility for work authorization; ineligibility for permanent residency status; expired conditional resident status, expired permanent resident card, ineligibility for naturalization, omissions or fraud on applications especially naturalization petitions, routine arrests, and criminal convictions.

 

Therefore, almost anyone, except a US citizen of more than 2 years, including those applying for entry, submitting applications for Immigration benefits, and those who already have permanent residency status can be placed in removal proceedings and deported. Just having a Green Card does not protect the individual from deportation or removal proceedings. Also, those who have had a naturalization certificate for less than two (2) years can have that naturalization revoked and an order of deportation entered against them if that certificate was issued because of fraud. Others who have engaged in serious security breaches to the level of treason or engaged in terrorist activities against the United States may be denaturalized.

Many people believe that if they have the misfortune to be placed in proceedings, then all you have to do is present a case for hardship to an Immigration Judge and there is a good chance s/he will stop the deportation. Not so. Each Immigration Judge is bound by the Immigration & Nationality Act to only grant the relief available to each applicant. Most undocumented people who have no immediate US citizen relatives, who have crossed the border illegally, or who have overstayed their visa may have no relief available. They may or may not be eligible for what is called “voluntary departure”. Voluntary Departure is what the applicant agrees to do, voluntarily depart the United States at his or her own expense. Voluntary Departure applies only to individuals who have no criminal conviction and who have been in the United States for at least one year and has the present ability and resources to leave the United States. The Immigration Judge may grant the individual 30 to 120 days to depart the United States. Extensions beyond this time are rare and if the individual agrees to voluntary depart but fails to do so, then the Immigration Judge’s order converts into an order of removal, in which case, a warrant for arrest will be issued. Most individuals once they are back in their country of origin can register with the US Embassy there and if under bond can recuperate that bond upon registry.

Others who have immediate relatives who are US citizens may qualify for other relief such as Adjustment of Status or Cancellation of Removal. Some may qualify for asylum. In order to qualify for asylum, the individual can be a new arrival, or demonstrate that s/he has been persecuted in their country of origin because of their race, religion, nationality, political opinion or membership in a particular social group. If an applicant for asylum has been in the United States physically longer than one year, it is increasingly difficult but not impossible for a judge to grant asylum. Individuals who have changed country or personal circumstances may still qualify for asylum if they meet the higher burden of proof.

In order to qualify for Adjustment of Status, which is essentially an application for permanent resident status, an individual must already be the beneficiary of an approved I-130 alien relative petition and a visa must be available to him or her. They must otherwise qualify for adjustment of status meeting the good moral character conditions, meaning that they have no significant criminal convictions that could bar them from getting a Green Card. A person who is already a permanent resident can also re-adjust his or her status if they have been a Lawful Permanent Resident for at least 5 years and resided in the US continuously for at least 7 years.

Someone who is not already a Permanent Resident can also apply for Cancellation of Removal. This relief is ONLY available if the individual is already in removal proceedings and has been issued a notice to appear in front of an Immigration Judge. Cancellation of Removal requires that the applicant complete and document ten (10) years of physical presence in the United States. Remaining 10 years in the US is not the only condition that must be met, however. If the person has serious criminal convictions, s/he is not eligible for Cancellation of Removal. Most importantly the applicant for Cancellation of Removal must demonstrate that s/he has immediate US citizen relatives that would suffer extreme hardship if s/he were deported. The proof of hardship should be extensive and beyond what anyone would suffer if a loved one was deported. The hardship must be extreme and exceptional. Proof is reviewed on a case by case basis although there are standards for what is considered extreme and exceptional to the immediate US citizen relative. For individuals with more complicated immigration matters such as very serious criminal convictions other types of relief may be available. In these cases a skilled immigration attorney and sometimes seasoned criminal attorney may play a role. In still other more complicated cases federal appeals may be necessary.

One more thing, some people believe that if you get married to a US citizen while in removal proceedings this will stop the deportation. This is not always true. A higher burden is placed on people who marry while in removal proceedings. It is presumed that the marriage is fraudulent and the applicant for relief must prove that the marriage is bona fide. In addition, the marriage petition that is filed may take many months if not a year+ to get approved before the individual is eligible for adjustment of status to permanent residency. In some jurisdictions, the individual waiting on the marriage petition may be ordered removed or granted voluntary departure before they are eligible to adjust status, thus, separating the parties anyway.

If anyone finds themselves in removal proceedings, then it is critical that s/he finds an immigration attorney that can give wise counsel explaining his or her options for relief and the likelihood of that relief being granted.

Attorney Nadine A. Brown practices Immigration Law in the Greater Orlando, Florida area. She has practiced Immigration Law for approximately 8 years, 3 of which was as the supervising attorney for the Catholic Charities Immigration & Refugee Services and the last 4 in private practice. Her firm was established in 2002 and her cases involve issues relating to asylum, citizenship, consular affairs, deportation, residency petitions, student and business visas, and visa extensions or changes of
status. She handles all cases personally. Questions can be sent to [email protected]

Please visit her website at: www.nadinebrownpa.com

About the author

Nadine A.Brown