What Happens First When Someone Is In The Process Of Being Deported Or Removed?
First, ICE will serve you a notice to appear, or at least, a document that they claim is a notice to appear. There’s still an open legal question that the courts are working on about what constitutes a valid notice to appear. Your document will say it’s a notice to appear and will tell you that they’re placing you in a removal proceeding, as well as what the grounds are for thinking that you’re removable. It should have a date and time for your hearing (although they often do not) and where the hearing will be.
What Happens At A Hearing? What Are The Potential Outcomes? What Is Your Role As The Attorney Through All Of This?
There are three basic types of hearings. One is a bond hearing. Something that trips up a lot of people who try to go through this without an attorney is that the bond case is technically separate from their removal case, and so any documents and evidence submitted into the record for the bond hearing are not automatically transferred over to the removal record. Oftentimes, people who don’t have an attorney will try to rely on something they submitted for bond, but it’s not even in their record to be used in a removal case.
As far as the case on the marriage, there’s a master calendar hearing, which is basically a pre-trial or a status hearing for attorneys and the judge to plan out the case and get on the same page. There’ll be at least one master calendar hearing, though usually there’s more. At the first hearing, if you don’t already have an attorney, you can ask the judge for more time to find an attorney. In Boston, they’ll usually give you two or three chances to find an attorney and then go forward without one if you haven’t found one. I don’t have as much experience in other courts, but my understanding is that they do vary. Some of them will just go forward if you don’t have an attorney at the very first hearing; they might only give you once chance. Then, once you either do or do not have an attorney and the case is progressing, you have to file pleadings, which is a document that tells the judge whether you agree that the government’s accusations that you’re removable are true or not. That document also lists what applications for relief you’re going to file.
Typically, then there’ll be another master calendar hearing to file the applications. They, in theory, are trying to move away from that right now to instead just set a deadline in the calendar, but I don’t know how well that project is going to hold up.
Eventually, you’ll get to the individual hearing, which will be a trial. All documentation in support of the application has to be submitted well in advance of the individual hearing. Different judges have different preferences on how far in advance (they’ll explain that at the master calendar hearing), but all the documentary evidence has to be submitted in advance. Any witnesses have to be ready to go to testify at the individual hearing because you only get one chance to put on your case. If the bond is denied, a case typically takes about 60 to 90 days from the time you’re arrested to the time it’s decided. If you get bond, then it’ll usually be several years.
What Are Possible Defenses? What Can I Do To Stop My Family Member From Being Deported Or Removed?
If the grounds for removal are not true, you might be able to get the case dismissed based on that. This would be more common when it’s a criminal issue because there may be some reason that ICE believes that a crime falls within a category that makes someone deportable, but actually, the crime is not within that category. This is where a good lawyer can really make a difference in terms of making the argument that the elements of the crime place it outside of that category.
If ICE is alleging that you entered without inspection or overstayed a visa, they are usually right about that. If they’re alleging fraud, you can contest that, but that’s probably an issue that would require an individual hearing because it’s pretty complicated. It’s not something that’s just a matter of a legal argument like the criminal convictions may be. Those are the first aspects to evaluate.
Second would be any sort of insufficiency in the process. I mentioned the issue with a lot of so-called notices to appear not actually being valid notices to appear. Whether that actually helps you or not depends a lot on your situation. Even if you get the case dismissed based on that, they can just bring the case back with a valid NTA. That could, however, provide a form of relief if your cancellation of removal and your eligibility for it depends on how long you’ve been in the United States before the notice to appear is filed. If you’re on the line between eligible and ineligible, getting the case terminated and forcing them to bring it again can actually get you across the line and get you the 10 years that you need to be eligible for cancellation.
Depending on what the case is based on, it may also be possible to get proceedings terminated, which is the immigration term equivalent to dismissed in most state courts. One way to do that will be prosecutorial discretion, which is just ICE agreeing that deporting you is not a big enough priority that they want to continue with the case. That discretion was not available at all during the Trump administration, which is expected to change with the Biden administration. ICE is historically less likely to grant it during Republican administrations than during Democratic ones. Even under Democratic administration, it’s only available to some people. Typically, anyone with a serious criminal record is not going to get it; even a minor criminal record might be disqualifying. It does help people who maybe entered the country illegally or overstayed their visa but who have done everything in their life right from that point on. In those cases, it just doesn’t make sense to prioritize deporting them.
Some forms of relief are not completely under the immigration judge’s control, but they may dismiss the case or administratively close it, which is sort of like a dismissal except that there’s still technically a case, though they’re not moving forward on it. They might do that to let you apply for a relief you’re eligible to apply for with USCIS.
Finally, the last thing would be your applications that do get decided by the immigration judge, so those will depend on your circumstances. If you’re a permanent resident, cancellation of removal would definitely be the most common. The eligibility standards are completely different for permanent residents and for people who are not permanent residents—it’s unfortunate that they have the same name. LPR cancellation is when the judge has a lot of discretion as long as you meet the basic eligibility requirements. The first requirement is not having a criminal record that would disqualify you (aggravated felonies, basically). Beyond that, you have to have had your green card for at least five years, and you have to have been in the US for seven years. There are some more complicated requirements sometimes around whether certain types of crimes can disqualify you if they’re committed before you’ve met the five-year requirement. Someone who came here before the age of 18 might actually be able to inherit a longer period of residence from their parents.
For non-LPR cancellation, you have to have been in the US for a continuous period of 10 years. You have to have had good moral character during that 10-year period, which basically means not having certain criminal convictions (and there are a lot more types of convictions that can disqualify you, such as crimes involving moral turpitude and controlled substance offenses, for example). The good moral character also means you have to pay your taxes and generally obey the law. More and more judges will deny people who haven’t submitted proof of paying their taxes. Also, lying to the government on any previous immigration applications could be a cause to deny your good moral character. You have to, in addition, prove exceptional and extremely unusual hardship to a U.S. citizen or a lawful permanent resident family member, and that’s a pretty high standard. That’s not the ordinary hardship that would happen anytime a family member’s deported; it has to be something special like if you have a child with a special education issue or a medical issue that you take care of and, for whatever reason, the other parent wouldn’t be able to handle this alone.
That hardship, along with asylum, can be good qualifiers that can help you get cancellation of removal. Asylum requires that you either have been persecuted or would be at risk of persecution in your home country, either by the government or by someone who the government is unable or unwilling to control. That persecution has to be based on your race, religion, political opinion, particular social group, or nationality. Asylum can be a lot broader than what it may sound like. For example, a lot of people coming here from Central America may be able to apply for asylum based on persecution by gangs that are so powerful that the government can’t control them. Particular social group is sort of vague, so it’s possible to make arguments for new particular social groups that the law hasn’t previously recognized. And that’s always changing. Asylum might also be granted if you’re someone who has testified against gang members and would be known to the gang, which would want to persecute you. Those are typically the most common ways to defend against removal.
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