REMOVAL/ DEPORTATION PROCEEDINGS

HELP! I just receied a Notice To Appear (NTA) in Immigration Court, what does this mean? Will I be Deported?

If you received a NTA to appear before an Immigration Judge, that means that you have been placed into Removal Proceedings (formerly referred to as Deportation Proceedings). This does not mean that you are going to be removed from the U.S. immediately, but you will be given an order of removal if you do not prove to the Immigration Judge that you are entitled to some form of relief from removal. The type of relief that is available to you is very complicated and cannot be decided without a thorough review of your entire immigration case file with an experienced immigration attorney. Below is an overview of the different kinds of relief from removal that the attorneys at The Shapiro Law Firm have successfully obtained for our clients. We have represented clients in Immigration Courts across the United States, including Immigration Courts in: New York, NY, Newark, NJ, Atlanta, GA, Hartford, CT, Boston, MA, Cleveland, OH, Arlington, VA, Philidelphia, PA, Detroit, MI, and more. If you are in Removal Proceedings or are concerned that you will soon be placed in Removal Proceedings because you are here in the U.S. without lawful status,

What are Removal Proceedings & why is someone placed in them?

The United States government can force a non-citizen to return to his or her home country for a number of reasons, including:

Committing fraud or misrepresenting a material fact in order to get a Visa, Green Card, etc.
Narcotics Conviction
Murder Conviction
Illegal Trafficking of Firearms
Money Laundering
Crime of Violence that carries at least a sentence of 5 years or more.

Formerly referred to as “deportation proceedings,” Removal Proceedings are carried on before an immigration judge, who decides whether or not an immigrant will be allowed to enter or remain in the country. While, generally, a person cannot be expelled without first going through a removal hearing, someone arriving at the border, or other port of entry, can be forced to leave without a hearing or appearance before a judge. If an immigrant is found removable, she can be deported or forced to leave the United States.

Asylum & Withholding of Removal

ASYLUM

WITHHOLDING OF REMOVAL

WITHHOLDING UNDER THE CONVENTION AGAINST TORTURE (CAT)

Asylum may be granted to individuals who have been persecuted or who fear future persecution in their home country due to one of the following grounds:

Race;
Nationality;
Religion (religious persecution, such as against Indonesian Christians & members of the Baha’i faith in Iran);
Political belief or opinion, and/ or;
Membership in a Particular Social Group.

Withholding of Removal or Deportation can be granted for reasons similar to Asylum. There is no 1-year bar limiting a judge from granting an order of withholding, however, the standard of proof is higher than Asylum. Unlike individuals granted Asylum, an individual granted Withholding of Removal cannot apply for Permanent Residence and can possibly be deported to a different country than the home country or the home country if conditions improve.

CAT protection is found in Article 3 of the United Nations Convention Against Torture Treaty (CAT). The purpose of this international treaty obligation is to protect aliens from torture in their home countries if it is more likely than not that they will face torture.

Torture = severe pain or suffering (physical or mental) that is intentionally inflicted by or at the instigation of or with the consent or acquiescence of a public official, or other person acting in an official capacity.

Affirmative

Defensive

1-Year Rule

You MUST* file for Asylum within 1-Year of your last entry into the U.S. This rule was enacted by Congress to prevent fraud. Congress reasoned that if an individual is truly afraid to return home, he or she should be filing for Asylum immediately upon arriving in a safe heaven, i.e., the United States. 1-Year is supposed to give potential applicants ample time to file the appropriate forms and evidence. In practice, however, there are many reasos an individual will fail to file within the 1-Year deadline and there some statutory exceptions to the rule.

Proving your eligibilty for an exception to the 1-Year filing deadline is very difficult. It is thus extremely important that you file within a year of entering the United States if you have a genuine fear that you will be persecuted if you are forced to return to your native country.

*How do I calculate the 1-Year for asylum applications?

Here is a simple example of how to calculate the 1-Year Asylum filing deadline:

Date of entry into U.S. = May 18, 2016

1-Year Asylum Deadline = May 17, 2017

An Affirmative Asylum application is filed with USCIS before an applicant is issued a Notice to Appear and placed in Removal Proceedings. Affirmative Asylum applicants are interivewed by an Asylum Officer. If the Asylum Officer does not approve the application, the case is referred to Immigration Court and the applicant is placed in Removal Proceedings.

A Defensive Asylum application is filed with USCIS after an applicant is issued a Notice to Appear and is placed in Removal Proceedings. A Defensive Asylum application is litigated before an Immigraition Judge at an Individual or Merits Hearing.

Voluntary Departure

Cancellation of Removal

Voluntary Departure is usually granted by an immigration judge after issuing an Order of Removal or Deportation to an individual who agrees to leave voluntarily, rather than ordering forced removal or deportation.

*WARNING*

If you are granted Voluntary Departure and you do not depart by the U.S. by the agreed upon date, you will be subject to additional immigration bars.

DO NOT REQUEST VOLUNTARY DEPARTURE IF YOU DO NOT PLAN TO ACTUALLY LEAVE THE U.S.!

Every year, Immigration Judges (IJ) are given the authority to issue visa numbers for up to 4,000 non-Permanent Residents. If the cap is reached before your hearing before the IJ, the IJ will hold off making a decision on your case until a visa number becomes available in subsequent fiscal year(s). An applicant whose is granted Cancellation of Removal can then apply for a Green Card. Permanent Residents placed in Removal Proceedings are also eligible for Cancellation of Removal and are NOT subject to the 4,000 visa number cap. Even if you meet all of the requirements, the IJ still retains discretion regarding whether or not to grant Cancellation of Removal in each particular case.

Lawful Permanent Residents

7-Year Cancellation

Non-Lawful Permanent Residents

10-Year Cancellation

If you are in Removal Proceedings and are NOT a Permanent Resident, you must prove the following requirements to be eligible for Cancellation of Removal:

1. 10 Years of Continuous Physical Presence in U.S. BEFORE being issued a NTA;

2. 10 Years of Good Moral Character BEFORE being issued a NTA;

3. No convictions for criminal offenses that will subject you to additional grounds of inadmissibilities, AND;

4. In the event of your removal, your U.S. Citizen or LPR Spouse, Parent and/ or Child will suffer an exceptional and extremely unusual hardship.

If you are in Removal Proceedings and you are a Permanent Resident, you must prove the following requirements to be eligible for Cancellation of Removal:

1. 5 Years in U.S. as LPR;

2. 7 Years of Continuous Physical Presence in U.S. BEFORE being issued a NTA & without committing certain crimes;

3. 7 Years of Good Moral Character BEFORE being issued a NTA;

4. No convictions for an aggravated felony, AND;

5. You have not previously been granted Cancellation or certain other waivers in immigration proceedings before.

I am in Removal Proceedings But No Forms of Relief Apply to Me, Can You Still Help Me?

If you are in Removal Proceedings but you are not eligible for any of the applications above, you may still be able to avoid having an Order of Removal entered against you by seeking Prosecutorial Discretion (PD) to administratively close your case.

What is Prosecutorial Discretion (PD)?

PD is the authority of agency to enforce OR not to enforece a law against someone. In the immigration context, PD refers to ICE’s decision on whether to issue, serve or file a NTA and a broad range of other discretionary relief.

How does U.S. Immigration & Customs Enforcement (ICE) decide when to exercise PD?

Why would I want to go back to Immigration Court?

On June 17, 2011, ICE Director John Morton issued a guiding doctrine, known as the Morton Memorandum, to assist ICE in determining when to exercise PD. The Morton Memorandum contains a non-exhaustive list of factors for ICE to use to determine if a specific alien is an “enforcement priority,” in order to better focus ICE resources on removing real threats and terrorists from this country.

*If your case is Administratively Closed, you are STILL IN REMOVAL PROCEEDINGS, you just do not have a future court date scheduled. At any time, you or DHS can file a Motion to Reopen your Removal Proceedings.*

If your case was administratively closed, it is probably because there are no forms of immediate relief from removal available to you, you are not a criminal and your are a person of good moral character. If you subsequently become eligible for relief, (for example, by marrying a U.S. Citizen or your U.S. Citizen Child turns 21, you need to ask the court to reopen your case in order to terminate your Removal Proceedings and allow you to adjust your status to that of a LPR before USCIS.

I Have An Order of Removal, Can You Help Me?

If you already have an order of removal, there may still be relief available to you depending on the circumstances surrouding the removal order. We will need to make a Freedom of Information Act (FOIA) Request for you in order to obtain your entire immigration file before we can know what, if any, relief to removal may be available to you. There are different ways to get your case back before the Immigration Judge:

MOTION TO REOPEN

A motion to reopen seeks to reopen proceedings so that new evidence can be presented and a new decision entered on a different factual record, normally after a further evidentiary hearing. A motion to reopen will not be granted unless the Immigration Judge is satisfied that the evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.

MOTION TO RECONSIDER

A motion to reconsider requests that the original decision be reexamined in light of additional legal arguments, a change of law, or an argument or aspect of the case that was overlooked. A motion to reconsider must specify the errors of law or fact in the previous order and must be supported by pertinent authority.

ORDER OF REMOVAL IN ABSENTIA

If you fail to personally appear at any of your scheduled immigration court dates, the Immigration Judge will immediately enter an order of removal in absentia against you. In order to have the in absentia removal order rescinded, you must:

1. File within 180 days of the entry of the removal, AND;

2. Prove that you failed to appear due to “exceptional circumstances.”

The 180-day filing deadline does not apply if you failed to appear because you:

1. Did not receive proper notice as required, OR;

2. Were in federal or state custody.

APPEALS TO THE BOARD OF IMMIGRATION APPEALS (BIA)

The BIA hears all appeals from orders of the Immigration Judges, as well as a few direct appeals from USCIS decisons. Generally, you have 30 days to appeal the adverse decision. There are a very limited number of issues that can be appealed. Appeals cannot be used to argue facts. There must be a legal question at issue.

FEDERAL APPEAL – U.S. COURT OF APPEALS, 2ND CIRCUIT

The U.S. Federal Circuit Courts have the statutory authority to review specific BIA decisions. The 2nd Circuit Court of Appeals hears all decisions made by Immigration Judge’s in New York and Connecticut.