Law office of Popkin, Shamir and Golan, 40 years experience in immigration solutions

21. HAVE A DEPORTATION HEARING?

Today, it is not called “Deportation”. It is called “Removal”. But it is the same.

Removal Hearings begin with a Notice to Appear (NTA) giving some identifying information about the alien and stating with specifity the facts and the sections of the law why the alien is not entitled to stay in the United States.

The “alien” would be a person who is not an American citizen and who was never granted status as a Legal Permanent Resident (LPR - or Green Card holder), or - even if granted LPR status - either obtained this status in an illegal manner, or did something later to lose his or her right to keep this status.

Removal Hearings are conducted in Immigration Court, in front of an Immigration Judge. Against the alien is a Trial Attorney representing ICE (U.S. Immigration and Customs Enforcement). The alien has the right to be represented by his/her own lawyer. Immigration Court is not a criminal Court and the alien cannot have a Public Defender to represent him/her at the expense of the government.

The purpose of the Immigration Court is, in a way, to protect the alien, even if many people do not think so. In most cases, the Immigration and Nationality Law (INA) does not give the government (ICE or CIS or CBP) the authority to just grab an alien, detain him/her and deport him or her. In most cases, the Immigration Law requires the alien to be given a hearing before an Immigration Judge, and only the Judge can find the alien removable (deportable) and order the deportation. Such hearings are conducted under strict rules of procedures and evidence, and the alien enjoys legal and constitutional protections. The alien is also permitted to apply for relief from deportation on certain grounds:

The alien may start by denying deportability, claiming that the U.S. government has no legal reasons to deport him or her. If this defense succeeds, the case is terminated. If this claim fails and the hearing continues, there are still other defenses;

The alien may “renew” an application that was previously denied by the CIS (U.S. Citizenship and Immigration Services). The Immigration Judge would re-adjudicate the old application and make a new decision whether to grant LPR status - or to order removal.

The alien may file thru the Immigration Court a new Application for Adjustment of Status, if the alien is eligible for a Green Card;

The alien may apply for a relief which is available only in the Immigration Court, in the form of Cancellation of Removal (previously: Suspension of Deportation). This is based on a lengthy stay in the United States (ten years, at least), good moral character (no criminal convictions during the last ten years), having close relatives who are American citizen or immigrants (children, spouse, or parent), and proof that some of the relatives would suffer terribly, terribly if the alien is deported.

The alien may apply for relief in one of the categories or sub-categories of Political Asylum.

Procedures in Immigration Court are, usually, not very fast. A case may drag on for years. In the meantime the alien is free to go on with his or her life. In many cases the alien is even granted an Employment Authorization Document (EAD) while the case is pending in Immigration Court. If the Immigration Judge decides against the alien and issues an Order of Removal, the alien is entitled to file an appeal to the Board of Immigration Appeals (BIA) in Falls Church (near Washington D.C.) An appeal like this may take several years.

The possibilities mentioned above must lead to one conclusion: A Notice To Appear in Immigration Court could be, in many cases, an opportunity. Therefore, the alien should not miss it or avoid it. If the alien appears as scheduled, he or she still has a chance to stay in the Unites States. If the alien does not appear as and when requested, the Immigration Judge may issue an Order of Removal in the absence of the alien (“in absentia”). It is almost impossible to cancel such an order.

Final warning: A Removal Hearing in Immigration Court, before an Immigration Judge, with a Trial Attorney representing ICE against the alien - is a serious matter. No alien knows enough law and rules of procedure to represent himself of herself. Not even every immigration lawyer is qualified to handle such cases (and certainly not any “immigration consultant”). An alien who receives an NTA should “shop” around for a lawyer. An experienced immigration lawyer for such a serious matter is a must.

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