Deportation Defense

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DEPORTATION DEFENSE

Successful deportation defense requires a close understanding and familiarity with recent trends in court decisions, as well as skillful interpretation of immigration law.  For this reason, having an experienced immigration attorney is an indispensable asset toward mounting a successful deportation defense.  Amna Shirazi has extensive experience defending clients in deportation defense hearings and is ready to put her expertise to work to help win your case.

GROUNDS FOR REMOVAL

Except for U.S. citizens, individuals in the United States, including lawful permanent residents (LPR), may be subject to removal. In 1996, Congress consolidated the formerly separate exclusion and deportation proceedings into one proceeding, removal. With some exceptions, cases pending before April 1, 1997 apply the former exclusion and deportation procedures and rules. Cases on or after that date are subject to the new removal procedures. One may be placed in removal proceedings if subject to either grounds of inadmissibility or deportation.

There are several grounds for removal, including, but not limited to:

  • Inadmissibility at the time of entry or at adjustment of status
  • failure to maintain status
  • cancellation of conditional residence status
  • marriage fraud, and
  • Certain criminal convictions, including:
    • crimes involving moral turpitude
    • aggravated felonies which include, among others, murder, rape or sexual abuse of a minor, trafficking in any controlled substance and money laundering
    • violent crimes
    • drug-related crimes
    • domestic violence crimes
    • theft or burglary
    • child pornography offenses
    • prostitution and slavery offenses
    • fraud or deceit crimes, such as tax evasion
    • alien smuggling
    • obstructing justice
    • firearm violations; and
    • conspiracy or attempt to commit any of the above.
  • Falsifying immigration documents or falsely claiming U.S. citizenship; and
  • Security and political related violations, such as engaging in terrorist activities, activities that endanger the public or national security, or activities that have potentially serious adverse foreign policy consequences for the United States.

Relief from Removal

If eligible, a foreign national may challenge removal and/or apply for relief from removal. Most of the relief is discretionary, and includes, but is not limited to:

  • Voluntary departure;
  • Cancellation of removal;
  • Section 212(c) relief (certain LPRs with certain criminal convictions prior to April 24, 1996);
  • Registry (individuals who have lived in the U.S. since January 1, 1972);
  • Adjustment of Status (An individual inadmissible due to a criminal conviction or due to fraud or willful misrepresentation may be eligible for a waiver under INA § 212(h) or INA § 212(i), respectively.);
  • Asylum, withholding of deportation or relief under Convention Against Torture Act (CAT); and
  • Pardon.

Procedure

The Department of Homeland Security (DHS) may initiate removal proceedings for any foreign born individual subject to grounds of inadmissibility or deportation. Most all foreign nationals are entitled to a removal hearing before an Immigration Judge unless they have waived that right. Individuals subject to expedited removal, however, are an exception. Foreign nationals may be detained pending removal proceedings, although some are eligible for release on their own recognizance, parole or bond.

To begin the removal proceedings, the government files a Notice to Appear (NTA) with the Immigration Court. The NTA lists factual allegations and charges of inadmissibility or deportability. A foreign nation in removal proceedings is entitled to due process. The Immigration Judge must explain the hearing procedures and inform the foreign national of his/her rights. Removal proceedings are considered civil, and not criminal, in nature. The foreign national is afforded the right to counsel at his/her own expense and the right to present testimony, witnesses and evidence to contest removal and apply for relief.

If the Immigration Judge orders removal, the foreign national may appeal to the Board of Immigration Appeals (BIA), and thereafter, with some limitations, to the federal courts. Once removed under an order, the foreign national will be inadmissible for a statutorily required number of years, unless granted a waiver or special permission to reenter the United States.

BOND/PAROLE REQUESTS

The Department of Homeland Security (DHS) may arrest and detain foreign nationals during removal proceedings and pending actual removal from the United States. Some foreign nationals are eligible to request release on their own recognizance or via bond or parole. Those with certain criminal offenses are subject to mandatory detention.

Bond

Most detained persons, except certain criminals, are eligible for bond. The minimum amount of bond is $1,500; the bond amount is set to ensure the foreign national appears at all future immigration hearings. A foreign national wishing to post bond must show that he/she is not a threat to society and not a flight risk. Factors used to evaluate eligibility and amount of bond include:

  • local family ties;
  • prior arrests and convictions, and appearances at those hearings;
  • employment or lack of employment;
  • membership in community organizations;
  • manner of entry and length of time in the United States;
  • immoral acts or participation in subversive activities;
  • financial ability to post bond;
  • property in the United States;
  • previous immigration violations;
  • defenses to immigration charges; and
  • eligibility for relief.

General Procedure

The DHS initially makes a custody determination. Some foreign nationals may appeal this decision by requesting a bond redetermination hearing before an Immigration Judge. The bond hearing is separate from the removal proceeding. Both the DHS and the foreign national may appeal to the Board of Immigration Appeals (BIA). The appeal, however, will not stay the removal proceedings. If the foreign national’s circumstances materially change after the initial bond hearing, he/she may request a subsequent redetermination hearing. The bond may be revoked at any time, although the revocation is subject to administrative review before the BIA.

Parole

Certain individuals ineligible for a bond hearing before an Immigration Judge may be eligible for parole. There are varying standards depending on the circumstances. The parole request is made to the DHS. Parole decisions are based on:

  • local family ties;
  • prior arrests and convictions, and appearances at those hearings;
  • employment or lack of employment;
  • membership in community organizations;
  • manner of entry and length of time in the United States;
  • immoral acts or participation in subversive activities;
  • financial status;
  • property in the United States;
  • previous immigration violations;
  • defenses to immigration charges; and
  • eligibility for relief.

Parole is automatically terminated upon the individual’s departure from the U.S. or the expiration of the period authorized for parole.