Deportation Defense Attorney: Fighting Removal.

• When Can a Deportation Defense Attorney Intervene? Ordinary removal proceedings begin when the U.S. Department of Homeland Security (DHS) serves an individual with a Notice to Appear (NTA) in removal proceedings. The NTA will state allegations and grounds on which the government asserts removal, and it should be sent to the individual in question. Although NTAs are supposed to list the initial hearing’s date and time, this is often not the case. In many cases, individuals in removal proceedings will not receive a notice of hearing until sometime later. This second document will notify the individual of their court appearance, date, and time. This hearing will usually be an individual’s first appearance in immigration court.

The government must establish removability, and unless they are able to meet their burden, an individual is not subject to removal. This is the central advantage of removal proceedings, as removability can be challenged on any law, fact, or other issue. A deportation defense attorney will use this principle in each and every case, tailoring the defense to their client’s specific situation. For individuals facing removal, this means not accepting allegations of removability as fact and instead thoroughly reviewing them in order to develop a comprehensive defense strategy. With the government’s burden of proof to meet, any factual dispute regarding allegations can be an opportunity for immigration defense attorneys to preserve options for relief. By denying allegations and challenging the government’s burden of establishing removability, we can protect our clients against removal. All of this is handled in the court and at the removal hearing.

How do expedited removal, fear screening, and the two immigration-court hearings differ?

What Is the Difference Between Expedited Removal, Fear Screenings, and Removal Proceedings?

The first immigration-court appearance in ordinary removal proceedings is known as a Master Calendar Hearing. These hearings are primarily concerned with procedural matters. During the hearing, the judge and attorneys will address pleadings, establish scheduling, determine filing deadlines, and discuss the relief for which the respondent is seeking to apply. The Master Calendar Hearing serves as a framework for the proceedings to follow. The Individual Merits Hearing, in contrast, focuses on the substantive evidence of the case. It involves witnesses’ testimony, documentary evidence, cross-examination, and detailed legal arguments. This is where the judge carefully examines the facts and law to determine removability or eligibility for relief. At the end of this hearing, or shortly thereafter, immigration judges can issue their final decisions on these matters. Expedited removal is a different administrative process that triggers when an immigration officer determines that certain applicants for admission are inadmissible. Unlike ordinary removal proceedings, expedited removal does not involve a court hearing before an immigration judge; DHS agents make the decision on the spot. However, individuals facing expedited removal who claim a fear of persecution in their home country are entitled to a credible fear interview. A fear screening is the initial step used to determine if an individual has a credible fear of returning to their country of origin. Credible-fear proceedings generally involve stowaways and individuals subject to expedited removal under INA § 235(b)(1), rather than ordinary removal proceedings. These screenings are conducted by DHS officials, and if the fear is found credible, the individual’s case is typically transferred to immigration court for a comprehensive hearing. For individuals subject to expedited removal other than stowaways, a positive credible fear determination generally triggers the transition to ordinary removal proceedings. Here, we can begin formulating a complete defense strategy to fight removal.

What Are the Cancellation Rules for Lawful Permanent Residents and Nonpermanent Residents?

Lawful permanent residents may be subject to removal proceedings as a result of certain criminal offenses. In these cases, LPR cancellation of removal proceedings may be a viable option. However, LPR cancellation of removal has strict requirements. Applicants must have been lawfully admitted for permanent residence for at least five years and have resided continuously in the United States for seven years after having been admitted in any status. They must also prove that their removal would cause “exceptional and extremely unusual hardship” to their qualifying U.S. citizen or LPR spouse, parent, or child. An LPR conviction for an aggravated felony does not allow for cancellation of removal.

For individuals who are not lawful permanent residents, cancellation of removal has very different and very strict requirements. These are most commonly referred to as non-LPR cancellation. In order to be eligible for cancellation, a person must demonstrate a minimum of ten years of continuous physical presence. This is a far more stringent requirement than the seven-year continuous-residence requirement for LPR cancellation. Additionally, while LPR cancellation focuses more heavily on familial ties, non-LPR cancellation requires an application to address the burden of proof associated with “exceptional and extremely unusual hardship.” It also requires that the applicant is a person of “good moral character.” The applicant must prove this character for the ten-year statutory period.

With these strict requirements, individuals seeking cancellation of removal must focus heavily on their proof. All individuals need to preserve every option for relief from their initial court hearing. While we advise clients to focus heavily on their proof, we never ignore the government’s burden of establishing removability. All LPRs and non-LPRs should rely on a thorough, comprehensive defense in order to protect against removal.

LPR and non-LPR cancellation are just two examples of ways to avoid removal. At Spodek Law Group, we handle removal proceedings in the immigration courts, and we work to provide comprehensive solutions for clients in all types of cases. We do so through skilled legal representation.

What Can Asylum, CAT Protection, Adjustment, and Victim-Based Relief Provide?

1. Asylum

Asylum concerns the individual facing persecution in their country of origin. The applicant must establish a reasonable possibility that they will face persecution in their home country. If a person has a qualifying fear based on race, religion, nationality, membership in a particular social group, or political opinion, they are generally eligible to apply for asylum.

2. Withholding of Removal

Like asylum, withholding also involves persecution. However, a showing of a clear probability of persecution is necessary. Withholding of removal is often called “asylum-lite.” While the person is not granted asylum, they are not immediately deported to their home country if a threat of serious harm exists.

3. Convention Against Torture (CAT) Protection

A request for CAT protection also concerns a person’s fear of being sent back to their home country. For CAT protection, the petitioner must show a likelihood that they will be tortured in that country. This is a narrower scope of protection, but it provides vital protection to those in danger.

4. Adjustment of Status

While many other forms of relief focus on avoiding deportation, adjustment allows the individual to change their status to that of a lawful permanent resident. While generally processed through United States Citizenship and Immigration Services, adjustment can be pursued in removal proceedings in some cases. To qualify for adjustment, a person must have an approved petition by a family member or employer, must be admissible to the U.S., and must have a visa number currently available.

5. Victim-Based Relief

Various U.S. statutes and regulations offer immigration relief for individuals who have been victims of certain types of crimes or trafficking. The most common include victims of domestic violence, qualifying criminal activity, or a severe form of trafficking in persons, including labor trafficking. These victims are often granted a form of immigration status that is separate from conventional asylum.

When Do Detention, Voluntary Departure, and Appeals Change the Outcome?

Voluntary departure is a key alternative to a formal removal order. This allows qualifying respondents to leave the United States on their own rather than facing deportation. If granted, the individual will have a specific time period in which to voluntarily leave the country. Because this is not the same as a removal order, it avoids the long-term consequences of formal removal. A deportation defense attorney can negotiate voluntary departure for many clients in cases where all other defenses or forms of relief have been exhausted. Immigration judges can order detention or set bond amounts, and they can also order the immigration detention of those suspected of criminal misconduct or suspected to be a flight risk. In some cases, detained respondents can request a bond hearing, at which point the immigration judge will consider the risk that the respondent will not appear at his or her next court date. In addition to “flight risk,” judges will also consider the danger to the community that is posed by the respondent’s release. Relevant factors in these determinations include the nature of the respondent’s alleged crimes and criminal history, as well as ties to the local community and employment history. Certain criminal convictions can place detained respondents in mandatory detention. This generally means that the respondent is not eligible for ordinary bond redetermination based on flight risk or danger while mandatory detention applies. The respondent may remain detained while removal proceedings continue, subject to statutory exceptions and applicable judicial remedies. When an immigration judge issues a removal order, the respondent generally has thirty days to file a request for an appeal with the Board of Immigration Appeals (BIA). An appeal is available for respondents who wish to contest the judge’s final decision. An appeal’s deadline of thirty days will be counted from the date the judge renders an oral decision or mails a written decision.

Removal appeals to the BIA will also have the effect of “freezing” removal. Removal cannot be enforced against the respondent while the BIA is considering his or her appeal.

Speak With Counsel Before You Answer Anything

If agents have contacted you, the order matters: counsel first, answers second. Spodek Law Group has been practicing since 1976 and defends federal matters nationwide, coast to coast, from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028.