Custody & Bond Redeterminations
Deportation & Removal Proceedings
Unfortunately, there are many scenarios in which deportation and removal proceedings occur. Some events that may lead up to deportation or removal proceedings include committing a crime, entering the U.S. without the correct documentation, or violating the official immigration status. Depending on whether a foreign national was admitted into the country legally, he or she will be expelled on the premises of either “deportability” or “inadmissibility” (one who has been initially admitted will be charged with deportability, while one who has not been will be charged with inadmissibility.)
The U.S. Citizenship and Immigration Services begin by submitting a Notice to Appear with the Immigration Court for the foreign national who has a deportation or removal claim against him or her. Luckily, the foreign national is given the right to oppose the charge in Immigration Court and to apply for one of the following:
- Removal cancellation
- Protection under the Convention Against Torture
- Withholding of Removal
- Adjustment of Status
- Voluntary Departure
Of course, every individual situation is evaluated for its uniqueness, the severity of the removal or deportation circumstances, and the reliefs allowed in the statute.
Relief from Removal
There are specific forms that a foreign national may submit to avoid removal or deportation, depending on the circumstances:
- Adjustment of Status: You may be able to apply for an Adjustment of Status before the Immigration Court to avoid deportation. For more information, visit the Adjustment of Status page.
- Special Rule for Battered Spouse or Child: Under these terms, if you were previously admitted as a permanently lawful resident or deemed deportable or inadmissible, you may cancel your removal. You must display that you have had held good moral ground, had no convictions of specific crimes, removal would result in extreme hardship, and that you had been abused or exposed to cruelty by rather a parent or spouse who is or was a U.S. citizen or lawful permanent resident.
- 212 (c) Waiver: You may qualify for this type of relief if you already have seven years of lawful permanent residency in the U.S., pled guilty to a crime before the date April 24th, 1996, and have not spent an aggregated five years or more in any type of custody due to a crime.
- 212 (h) Waiver: This waiver may be used for charges such as prostitution, moral turpitude, and one count involving 30 grams or less of simple marijuana possession. To qualify, you must show that you have been rehabilitated, you have a legitimate relative who is a U.S. citizen or lawful permanent resident, and that deportation would lead to extreme hardship.
- 212 (i) Waiver: With this, you can dismiss any fraudulent attempt to procure a visa, other admission into the U.S., official documentation, and other specific benefits with the Immigration and Nationality Act. You must be the child or spouse of a U.S. citizen or a lawful permanent resident, and you must prove that the legitimate relative will suffer hardship without you in the U.S.
- Cancellation of Removal for Legal Permanent Residents: To be eligible for this waver, you must have been in the U.S. for a consistent seven years after being admitted a lawful permanent resident status, and you must not have been charged with an aggravated felony.
- Cancellation of Removal for Non-Legal Residents: To be eligible for this waver, you must have been present in the U.S. for no less than 10 years immediately after applying for a change of status, not have a record of certain crimes in the past, uphold a strong moral character throughout your stay in the U.S., and prove that a parent, child or spouse of yours who is a U.S. citizen or lawful permanent resident would encounter unusual hardship if you were removed.
Motion to Reopen / Reconsider
When applying for a motion to reopen or reconsider a decision, it is often considered by the same immigration officer who originally filed the first decision and it is always considered by the same office, service center, immigration court, district, or group in which the decision was made. You only have a thirty (30) day window to file a petition to reopen or reconsider the decision, so it’s best to begin the process as soon as the USCIS issues you a denial. If your I-290B form and written brief are accepted, then your lawful status may be granted to you.
You might want to reopen an application based on new evidence, recently-altered laws or policy, or whatever else that will alter the outcome of your case. In this case, you need to submit supporting documentation that states the facts to empower your petition to reopen. A motion to reconsider is a purely legal process in which you may deliver a well-formulated petition against the original decision presenting that there was an error or incorrect information at the time of the decision-making process.
For whatever reason, you may also request that your petition undergo review by the Administrative Appeals Office (AAO), as they process decisions made by the USCIS.
Appeals of Deportation Order
After receiving a notice of deportation from an immigration judge, you must file a Notice of Appeal within the 30 days from the original notice’s active date. If you happen to miss the deadline, you can explore options in the Motion to Reopen/Reconsider section, although the outcome remains uncertain. The repercussions of failing to take action against a deportation order are grim: federal agents from the Immigration and Customs Enforcement (ICE) may either order you into court, or even arrest you at will for deportation from the U.S. It is critical to ensure that your appeal is received at the BIA’s location within the 30 day period, as it will be considered late if it arrives after, even if it was postmarked before the deadline.
There are several steps to the overall process that you must complete before successfully filing the appeal for consideration. First, you file the Notice of Appeal (Form EOIR-26) to the BIA with the mandatory filing fee of $110.00. In addition, you are required to attach a copy of the immigration judge’s order and a brief description depicting the reasoning behind the Notice of Appeal. If you are considered to be an indigent, you may file a fee waiver application along with Form EOIR-26 and EOIR-26A as early on as possible (within the first couple of days after the immigration judge’s order). This will give you more time if the fee waiver is rejected, as the whole package will be sent back to you, eating up valuable time.
Due to the complex nature and time-sensitivity of the Appeal of Deportation process, there is a wide margin of mistake. A seasoned immigration lawyer understands the various forms, fee waiver process, how the BIA functions, and the most effective avenues of recourse when filing. The fee of a great attorney is small compared to the implications of your deportation.