Deportation is a civil proceeding wherein the federal government orders a non-citizen to be removed from the United States, for violating immigration or criminal laws. Prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the process of deporting an alien was called "deportation" and was limited to a non-citizen who was already present in the United States, regardless of entry (legal/illegal). Deportation was differentiated from exclusion proceeding which was applied to an alien who was apprehended at the border, before entry into the country. The IIRIRA eliminated these distinctions and the general term "removal proceeding" is now used for determining whether an alien is inadmissible, deportable, or eligible for relief from removal.
Removal proceeding is commenced by the Department of Homeland Security (DHS), which took on the functions of the Immigration and Naturalization Service (INS). The DHS has the discretion to "serve" an alien with a charging document (Notice to Appear) containing allegations of immigration law violations. An Immigration Judge will hear the case and will generally make two findings:(1) whether or not the alien is removable from the United States, and (2) whether or not the alien is eligible for a form of relief from removal. Our law firm can assist you with defense to removal matters and represent you before the U.S. Department of Justice's Executive Office for Immigration Review (Immigration Court). We have over a decade of experience with immigration removal defense.
The alien subject to removal proceedings may request discretionary relief at any time before the Immigration Judge enters his/her final order. The alien has the burden of proving that he/she is eligible for relief under the law and that he/she deserves such relief as an exercise of discretion.
Adjustment of Status
An alien in removal proceedings may apply to adjust status before an Immigration Judge. In order to adjust status, the alien must be admissible to permanent residence and an immigrant visa be immediately available. A common way to be eligible for adjustment of status is by marrying a United States citizen. Other ways for an alien to adjust status.
The alien may seek asylum if he/she could demonstrate that he/she is unable to return to his or her home country because of persecution or fear of persecution on account of his or her race, religion, nationality, membership in a particular social group, or political opinion. However, an alien may be ineligible for asylum under certain circumstances, including having failed to file an asylum application within an alien's first year of arrival in the United States, being convicted of an aggravated felony, or having been found to be a danger to national security.
Cancellation of removal
Cancellation of removal may be granted to qualifying U.S. permanent residents and non-residents:
An alien may be allowed to withdraw from removal proceedings where he/she could 1) demonstrate that he/she possesses both intent and means to depart immediately; 2) establish that factors directly relating to the issue of admissibility indicate that justice would be served.
In lieu of being subject to removal proceedings, the alien, with the permission of the Attorney General, may voluntarily depart the United States at the alien's own expense. An alien granted voluntary departure before the completion of the removal proceedings must leave the U.S. within 120 days. If voluntary departure was granted at the conclusion of the removal proceedings, the alien must depart within 60 days from end of the proceedings or within a shorter period set by the Immigration Judge. Although for good cause, extension of the period may be granted by the District Director, it may not exceed the 120-day aggregate limit. Administrative/Judicial Relief from Removal
Motion to reconsider
The alien may file a single motion to reconsider the decision that the alien is removable from the United States. Such motion must be filed within 30 days from date of entry of a final administrative order of removal. The motion shall specify errors of law or fact in the order and must be supported by pertinent authority.
Motion to reopen
Generally, an alien may file a single motion to reopen proceedings within 90 days of date of entry of the final administrative order of removal. The motion to reopen shall state the new facts or changed circumstances that will be proven if the motion is granted and must be supported by affidavits or other evidentiary material. There are exceptions to the 90-day period, such as asylum cases (changed country conditions, if the basis of the motion is to apply for asylum), ineffective assistance of counsel, and joint stipulation by the Department of Homeland Security to reopen the case for compelling reasons.
Stay of removal
A stay of removal prevents the DHS from executing an order of removal. An automatic stay of removal is granted during the time allowed to file an appeal (unless the right to appeal is waived), while an appeal is pending, or while a case is before the BIA by way of certification. The stay of removal is temporary and is usually accompanied by a motion to reopen or reconsider.
The alien or the DHS may appeal the decision of the Immigration Judge to the Board of Immigration Appeals (BIA). The BIA may dismiss the appeal, sustain the decision of the Immigration Judge, or remand the case to the Immigration Judge.
Federal courts are conferred with jurisdiction to hear appeals over certain decisions appealed from the Board of Immigration Appeals. The appellant has 30 days from the date of a final removal decision to file an appeal.