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What is a deportation and removal proceeding?

Deportation Defense

Deportation is a legal process that many non-citizens may face, requiring them to be removed from the United States. Another process similar to deportation is exclusion. An exclusion proceeding occurs when a non-citizen is denied entry into the United States due to a determination of inadmissibility. Today deportation and exclusion proceedings are both referred to as removal proceedings.

Grounds for Removal

Removal proceedings can result due to a variety of different circumstances. These include:

1.) Inadmissibility at the time of entry into the United States or at the time of an adjustment of status

2.) Other statute violations including overstay, past entry without inspection, evasion of inspection through a claim of citizenship, failure to maintain non-immigrant status, termination of conditional permanent residence, marriage fraud and the encouragement/assistance of any other alien to enter or attempt to enter the United States illegally

3.) Economic reasons including status as a public charge or an institutionalized person

4.) Security/political related grounds such as criminal activity that endangers public safety or national security, association with terrorists and/or terroristic activities, the commission of any act of torture, and receipt of military-type training from a terroristic organization

5.) Failure to register, falsification of documents or a false claim to citizenship

6.) Unlawful voting even if it did not result in a conviction

7.) Criminal grounds such as a conviction for a crime involving moral turpitude committed within 5 years of admission for which a sentence of one year or longer may be imposed, a conviction for an aggravated felony committed at any point after admission, a conviction relating to a high speed flight from an immigration checkpoint, a conviction for a firearm violation and a conviction for domestic violence, child abuse or child neglect at any point after admission

Grounds for Inadmissibility

A non-citizen can be determined to be inadmissible for any of the following reasons:

1.) Health-related grounds such as having a communicable disease that is considered to be of public health significance, failing to prevent documentation of vaccinations, and having certain physical or mental disorders that may pose a threat to others

2.) Economic grounds such as being identified as likely to become a public charge, seeking entry for the purpose of finding work and renouncing United States citizenship for the purpose of avoiding taxation

3.) Criminal grounds including convictions for crimes involving moral turpitude, convictions for drug related offenses, multiple convictions for any type of offense, involvement in money laundering and prostitution or the solicitation of prostitutes

4.) Moral grounds such as practicing polygamy or immoral sexual acts

5.) Violation of INA laws including previous removal, unlawful presence in the United States, failure to attend removal proceedings, document fraud, and student visa abuse

6.) Fraud or willful misrepresentation of a material fact

7.) Inadequate documentation for entry

8.) Security-related grounds such as suspicion for entering the country to engage in illegal activities

How does the removal process occur?

A removal proceeding begins once a Notice to Appear is sent to the non-citizen against whom the proceeding is occurring. Notice is sent by the United States Citizenship and Immigration Services (USCIS) and is required by law to be served in a proper and timely manner. The notice will contain detailed information stating the allegations and charges against the non-citizen.

If the non-citizen has been taken into custody as a result of the removal proceedings, he/she can request release upon payment of bond. Bond is an amount of money that can be paid as bail. The bond amount is initially set by the Immigration and Customs Enforcement (ICE) and a request for a redetermination of that amount can be made to the Immigration Judge. Bond hearings are separate from removal hearings.

The Notice to Appear will include a specific time and place at which the non-citizen must appear in front of an Immigration Judge for the First Master Calendar Hearing. During this hearing, the non-citizen will plea to the allegations listed in the notice. If any of the allegations are challenged, the next step of the removal process will be a Contested Hearing. During this hearing, evidence will be presented to dispute the allegations against the non-citizen and the Immigration Judge will determine whether or not the grounds for removal are proper.

If the judge finds that the grounds for removal are in fact proper, then the non-citizen can attempt to request for relief if he/she qualifies. The removal process ends with the Immigration Judge determining whether or not the requested relief can be granted.

What grounds for relief are available for removal proceedings?

The following is a list of the different types of relief that are available to an individual facing a removal proceeding:

1.) Cancellation of removal which is available for both lawful permanent residents and non-permanent residents can be granted if the non-citizen can demonstrate that his/her citizen spouse, parent, or child would experience exceptionally and extremely unusual hardship if they were to remain in the United States without the non-citizen respondent and if they were to relocate to the respondent’s native country. Examples of situations in which such hardship may be found to exist include if the non-citizen has elderly parents in the United States who are solely dependent on him/her, if the non-citizen has a child with a serious health issue or learning disability, and if significant financial consequences would result.

a.) Lawful permanent residents must have had status as lawful permanent residents for the last 5 years, have continuously resided in the United States for the last 7 years after lawful admittance and have not been convicted of an aggravated felony

b.) Non-permanent residents must have been continuously present in the United States for the last 10 years, have not been convicted of an offense

2.) Voluntary departure allows the non-citizen to avoid restrictions on re-entry into the United States that would ordinarily result from removal; departure must occur at the time specified by the Immigration Judge and at the expense of the non-citizen

3.) Adjustment of status from non-immigrant to a lawful permanent resident, which is available if the non-citizen is admissible for permanent residence and an immigrant visa is immediately available at the time of the application for the adjustment

4.) Application for asylum which is based on a well-founded fear of persecution based upon the individual’s race, religion, nationality, membership in a particular social group, or political opinion

5.) Suspension of removal, which results in status as a permanent resident, is available if the non-citizen has been continuously present in the United States for the last 7 years, has good moral character and can demonstrate that removal would result in extreme hardship for himself/herself, his/her spouse, or children. Factors considered in making this determination include age of the non-citizen respondent, both at the time of entry and time of application for relief, family ties within the United States and abroad, length of residence in the United States, health of self or immediate family members, political and economic conditions of the native country, and the non-citizens immigrant history.

6.) Waivers of inadmissibility which are available for various specific grounds of inadmissibility