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Removal (Deportation) Defense

Removal or Deportation is the legal process in which a 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.

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PLEASE NOTE: Detention for removal proceedings does not mean that you will be deported. With experienced CrImmigration Defense counsel, you may be eligible to fight your deportation and win!

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.

 

 

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ICE Holds/Detainers

If a person has an ICE hold or detainer against them in a local jail after a criminal arrest, this means ICE has flagged a person of interest for removal. ICE can only detain a person who is unlawfully present in the U.S. or who has violated immigration laws – like having a deportable conviction.  A person lawfully present in the U.S. with criminal charges alone, without any deportable offense convictions, should not be detained.  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 held in jail by the local jurisdiction, ICE has 48 hours to take the person into custody if they so choose.  If not, the person must be released. Even when released, most local jails share the person’s information with ICE. So, unfortunately, ICE custody is still possible even after released home from the local jail.

Deportation/Removal Hearings

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

asylum

withholding of removal & the Convention Against Torture

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 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 requires a hearing before the Immigration Judge. A request must 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. There is typically only one opportunity for an immigration bond hearing. It is the non-citizen’s burden to prove that they are not a) a danger to the community and b) a flight risk. If a non-citizen cannot show they are eligible for some form of relief from removal overall, they will not likely receive a bond because there is an assumption that the person will not return to court. 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).

Discretionary Relief from Removal

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.