Removal or Deportation is the legal process in which an “alien” or non-citizen person (meaning a foreigner who is not a naturalized citizen) is formally removed from the United States for violating the U.S. immigration laws.
While U.S. Citizenship and Immigration Services (USCIS) is the government agency that handles lawful immigration into the U.S., a different agency known as the Executive Office for Immigration Review (EOIR) oversees the court procedures when a person is brought before an Immigration Judge. The EOIR is a division within the Department of Justice that is responsible for conducting immigration court proceedings, appellate reviews, and administrative hearings. Immigration and Customs Enforcement (ICE) under the Department of Homeland Security (DHS) is the agency responsible for initiating removal/deportation proceedings and maintaining custody of the person charged with violating the immigration laws alleged.
If a person has an ICE hold or detainer lodged against them in a local jail after a criminal arrest, this means ICE has indicated he is a person of interest for immigration. A detainer is not a warrant and is not based on any probable cause. It simply means that once the person is finished with the local charges or posts bond, no longer being held by that jurisdiction, ICE has 48 hours to take the person into custody if they so choose. If not, the person must be released.
Removal hearings are conducted to determine whether certain individuals are subject to removal from the United States. The removal process begins when the Department of Homeland Security (DHS) files a document called a “Notice to Appear” (Form I-862) with the Immigration Court after it is served on the non-citizen person. The notice tells the individual to appear before an Immigration Judge, and includes the following information:
- Nature of the proceedings
- Legal authority under which the proceedings are being brought
- Non-citizen person’s alleged acts that violated the law
- Charges filed against the non-citizen person and the statutory laws that have been allegedly violated
- Non-citizen person’s ability to be represented by an attorney – at his/her own expense
- Consequences of failing to appear at scheduled hearings
- Requirement that non-citizen person provide the Attorney General with a current address and telephone number
It is the government’s burden to establish that they are removable from the United States by clear, convincing and unequivocal evidence. If the government meets its burden, you will have an opportunity to apply for any and all forms of relief from removal that you may be eligible for. Common forms of relief include adjustment of status, waivers of inadmissibility and removability, cancellation of removal, adjustment of status, asylum, withholding of removal, the Convention Against Torture, legalization and registry. Immigration law provides relief from removal to individuals who meet specific criteria (See Discretionary Relief below).
Bond Redetermination Hearings
In some cases, a non-citizen person who is detained by DHS can be released from custody upon payment of a bond. A bond for legal purposes is an amount of money paid as bail that is forfeited if a person fails to appear at a required hearing. Initially, the bond may be set by DHS, but usually not. Afterwards, a request can be made to the Immigration Judge to conduct a “bond hearing” where the Judge has the authority to re-determine the amount of bond set by DHS. A decision of a bond hearing can be appealed (by either the non-citizen person or by DHS) to the Board of Immigration Appeals (BIA).
The burden of proof is placed on the non-citizen person (Respondent) to show that they are eligible for relief under the law, and that they deserve such relief as an exercise of the Immigration Judge’s discretion.
- Cancellation of Removal
Cancellation of Removal
Cancellation of Removal is a form of relief that is available to qualifying lawful permanent residents and qualifying non-permanent residents. Under this benefit, an individual’s status is adjusted from “deportable” to “lawfully admitted for permanent residence.” An application for cancellation of removal is made during the course of a hearing before an Immigration Judge.
- Asylum and Withholding of Removal
Asylum and Withholding of Removal
Under immigration law, a non-citizen person may be granted asylum if they qualify as a “refugee.” An asylum applicant must demonstrate an inability to return to their home country because of past persecution or a well-founded fear of future persecution based upon their race, religion, nationality, membership in a particular social group, or political opinion. To apply for asylum, an alien should file Form I-589 within one year of their arrival into the U.S.
- Adjustment of Status
Adjustment of Status
This is a form of relief where an individual’s immigration status while in the U.S. is changed from temporary nonimmigrant to permanent resident. Those who qualify for visas allowing an adjustment of status are often petitioned for by a spouse, other family member, or an employer. Non-citizen persons who have engaged in criminal activity, failed to appear for proceedings or failed to depart after a grant of voluntary departure, may be ineligible for adjustment of status.
- Voluntary Departure
Voluntary Departure is often viewed as a relief of last resort. It allows a non-citizen person to leave the U.S. without a stigmatizing formal removal order. A non-citizen person allowed to voluntarily depart admits removability, but does not have a bar to seeking admission at a port-of-entry at any time. If a non-citizen person fails to depart within the time granted, they will receive a fine and a 10-year bar to several forms of relief from deportation.
- Administrative and Judicial Relief
Administrative and Judicial Relief
Administrative and judicial forms of relief are available to a non-citizen person after removal hearings have ended. These forms of relief are similar to appeals because they seek to overturn or challenge an order issued by an Immigration Judge.
When a a non-citizen person or DHS disagrees with the decision of an Immigration Judge, they can appeal to the BIA to have the immigration judge’s ruling overturned. The BIA is an administrative body that has the authority to interpret Federal immigration laws. An appeal of an immigration judge’s decision must be received by the BIA within 30 days from the date it was issued by the court.
Under the immigration laws, the Federal Courts of Appeal have the authority to hear certain decisions appealed from the BIA. If a non-citizen person disagrees with the rulings of the BIA, they may be able to appeal to the Federal courts. A a non-citizen person has 30 days from the date of a final removal decision to file a judicial appeal. The process for filing a judicial review is very complex and a qualified immigration attorney should be consulted.