Recent Developments in Deportation
Expedited Removal Expanded at Southern and Northern borders. Expedited Removal is the process by which individuals are removed from the U.S. without a hearing (without seeing an immigration judge). This program was recently exdpanded to points within 100 miles along the northern and southern borders of the U.S. The program is not intended for Mexicans and Canadians, but they are still subject to it.
Common Questions About Deportation
Q: What are my rights if I am arrested or detained by CIS or a DHS agent?
Whether or not you're a citizen, you have rights under the United States Constitution. You have the right to remain silent, not to answer questions asked by a police officer or government agent, even when detained or after you've been arrested. Ask for a lawyer right away. If another officer tries to speak with you, repeat, "I want to speak with my attorney" and say no more. If you have already answered some questions, you can stop answering them at any time and ask for a lawyer. The more you say, the more difficult it may be for an attorney to help you, since the CIS or government agent may be recording or writing down your words, which may end up excluding you from any immigration benefit.
If the officer continues to ask you questions after you have asked for a lawyer, write down or remember the officer's name and badge number, so you may tell your lawyer how you were treated. Remember, it is important to say as little as possible to any government agent, since they will try to use anything you say against you. Many times, if you are stopped and questioned, you could be detained even if you answer questions honestly. Thus, if this happens to you, remember to remain silent and ask to contact your lawyer.
Q: What will happen to me if I am detained by CIS?
If you are detained after questioning, CIS can hold you for 48 hours without officially charging you of any violation. In extraordinary emergency or other extraordinary circumstances, CIS may be able to detain you however long CIS deems necessary. Thus, it is crucial that you have attorney representation as early as possible after you are arrested to ensure that you are not held for a long period of time without legitimate reason. Upon arrest and initial detention, you will be questioned by a CIS officer who will try to determine if you are in the U.S. in violation of U.S. immigration law. You do not have to answer any of these questions without speaking with your lawyer first. If the CIS officer concludes that your statements and the evidence indicates that you have violation U.S. immigration laws, then you will be placed into a deportation proceeding (now called "removal proceedings"). At this point, the officer is supposed to provide you with a list of free legal service providers and tell you that you may be represented by an attorney in the deportation proceeding, but you will have to pay for the private attorney if you cannot qualify for a free legal service provider.
Q: Will I be released from detention?
CIS will charge you with violation(s) of U.S. immigration laws and issue you paperwork that is called a "Notice to Appear." This paperwork informs you that CIS will be charging you with deportable offenses before a U.S. Immigration Judge, who will decide whether or not you will be removed from the U.S.
CIS will then file the Notice to Appear with the Immigration Court. CIS does not have to file the Notice to Appear within a specified time period and the longer CIS takes to file the NTA with the court, the longer you will be detained. Once the NTA is filed with the court, a custody and bond hearing will be scheduled as soon as there is space on the court's calendar.
Q: What is Bond?
It is at this hearing that the judge determines whether or not you may be released on bond, while the case is pending. The bond hearing is important to any detained immigrant because without bond, the immigrant could be detained the entire period it takes for the court to hear the immigrant's case. This may be a long period of time, depending on the court's current backlog of cases. Immigrants may be released on "bond" by paying certain fees to the court, which the court believes will ensure that the immigrant will not flee the area and will return for the calendared hearing date in the future to speak with the Judge when the Judge is ready to try the case. In determining whether an immigrant is released on bond, the court would have to conclude that releasing you would not pose a danger to another person or property and that you would be like to appear for the future hearing(s). The court looks at factors such as: (a) local family ties; (b) prior arrests, convictions, appearances at hearings; (c) membership in community organization; (d) manner of entry into the US and the length of time you have lived in the U.S.; (e), immoral acts or participation in subversive activities; and (f) your financial ability to actually pay the bond.
NOTE: Immigrants detained or arrested due to criminal grounds or terrorist suspicion that makes the immigrant deportable may generally not be released on bond.
Q: How quickly can I be released? Can CIS/DHS detain me out of state?
Sometimes, CIS will not file an NTA with the Immigration Court in a timely manner. Thus, it is important that you know that your attorney may request a bond hearing directly from the Immigration Court, so you may be released sooner, even if you have not received an NTA or CIS has not filed the NTA with the Immigration Court yet. The other reason why it is important to have an attorney represent you early on in the proceeding is that when CIS fails to file the NTA with the Immigration Court, that means that the Immigration Court does not have jurisdiction or the legal right to hear your case yet because nothing has been filed in the court by your lawyer or CIS.
This is dangerous because CIS has the option of transferring any arrested alien to a detention facility out of the area before filing an NTA with the Immigration Court and has the option of filing the NTA with another Immigration Judge located next to the detention center, even in another state, that CIS plans to transfer the immigrant to. To stop CIS from transferring you out of the state to another facility, it is important that your attorney file for your bond quickly where you live so the local Immigration Court will take your case and you can not be transferred out of state to another facility where it will be difficult for your family or your attorney to reach you.
If the Immigration Judge grants bond, then your family or friends can post the bond one of two ways: (1) by paying the full amount of the bond in a money order to CIS which is refunded at the conclusion of the case (or usually six months after); or (2) by utilizing an authorized bail bond agent ? this usually requires a home with sufficient equity, the person whose name is on the deed to the home appearing in person at the bail bond company; and a fee of 10% of the bond amount, which is paid annually to the bail bond company and never refunded to the client. If the immigrant fails to appear at the Immigration Court hearing or at CIS if so requested, then the bond will be lost and the immigrant could be barred from future immigration relief).
Bond for non-criminal immigration violations is set at a $1500 minimum by statute. Sometimes, the judge will allow the immigrant to be released on his or her own recognizance without having to pay bond, but this is harder to obtain. CIS may appeal the bond issuance.
The above information is general in nature and is provided for public educational purposes only and should not be considered legal advice. Actions taken in your case on reliance of the above information is taken at your own risk. You should always consult a lawyer to review the particular circumstances of your case to determine what your rights are and what immigration remedies or benefits are available to you.
Q: Are there certain crimes that can get me deported?
The following is a list of crimes that may cause you to be deported, depending on the state statute and possible sentence involved. If you are arrested or have been convicted of any of these crimes, see a lawyer right away:
- murder, rape, or sexual abuse of a minor;
- trafficking in illegal drugs;
- purchasing or selling of illegal firearms (guns or other destructive devices such as explosives);
- domestic violence or stalking
- child abuse, child neglect, child abandonment
- theft or burglary, with imprisonment imposed of 1 year or more
- felony battery
- statutory rape
- defrauding schemes
- counterfeiting, creating false documents
- high speed flight from an immigration checkpoint
- trafficking in persons for immigration benefit or profit;
- attempted lewd assault
- DUI, causing serious bodily injury
Q: What happens if I don't show to my master calendar (removal or deportation) hearing?
A person who fails to appear for his or her departure after a final deportation order against him or her or has a deportation order that has been entered against the person because s/he failed to appear for immigration court (called an in absentia order) usually cannot benefit from most forms of immigration relief for 10 years. These forms of relief include adjustment of status (green card process in the US), cancellation of removal, and voluntary departure.
Criminal penalties for failure to depart:
Failure to depart the U.S. within 90 days of a final deportation order or to present oneself pursuant to bag and baggage letter is a felony, punishable up to 4 years (or 10 years if person is deportable under certain offenses). A person may also be held liable to pay a fine of $500 per day for each day s/he refused to depart the U.S.
Loss of federal appellate rights
There is no direct appeal available from an order of deportation that is entered onto the record when the noncitizen refuses to appear, except as to the Immigration Judge, him or herself, who entered the order. This motion to reopen is limited to the alien providing why s/he did not attend the removal proceeding and whether or not the alien is still removable.
ALWAYS CONSULT WITH AN EXPERIENCED IMMIGRATION ATTORNEY ABOUT WHETHER YOU CAN SUCCESSFULLY REOPEN THE OLD REMOVAL HEARING TO REVERSE THE ORDER.
Q: If I am subject to deportation and have to appear before an immigration judge, what options do I have? Is there any way to avoid being deported?
- Cancellation of Removal for Certain Permanent Residents.
- Cancellation of Removal for Certain Non -Permanent Residents
- Suspension of Removal
- Adjustment of Status;
- Voluntary Departure;
- Section 212(c);
- Political Asylum & Withholding of Removal;
- Protection under the Convention Against Torture;
- VAWA Cancellation & Immigrant Visa Abused spouse/child/parent;
Motions to Reopen/Reconsider Prior Removal Orders;
- Motions to Stay Removal or Motions to Terminate Proceedings;
- and more.
THESE CASES ARE COMPLICATED AND TAKE TIME. ALWAYS CONSULT WITH A REPUTABLE IMMIGRATION ATTORNEY ABOUT YOUR DEPORTATION DEFENSE OPTIONS. DO NOT WAIT UNTIL THE LAST MINUTE BEFORE YOUR HEARING TO GET GOOD IMMIGRATION ATTORNEY ADVICE!!!
Q: What is Voluntary Departure?
The Attorney General may permit an alien to voluntarily to depart the United States at the alien's own expense in lieu of being subject to proceedings or prior to the completion of such proceedings. proceedings. Isn't voluntary departure always good option? Consult with an immigration attorney about the pros and cons of taking this form of relief and if you qualify for this remedy. Even voluntary departure can be complicated:
- Even voluntary departure can be a mistake for an applicant to take, especially if the applicant is planning on overstaying the 60 days the judge usually gives the person to depart the US.
- A formal removal order will occur if you overstay your VD grant.
- There are specific types of voluntary departure with individual deadlines depending on when your case happened.
- You have to post a bond.
- An applicant convicted of an terrorist ground, and those previously removed are not eligible for VD.
- An applicant previously given voluntary departure is not eligible to receive it again.
- The courts can no longer extend voluntary departure periods.
- Appeals and motions to reopen must be usually made within the VD period to cancel VD or stop the applicant from the harsh 10 year consequences of overstaying VD.
* * * * *
The above information is general in nature and is not intended to be considered or relied upon as legal advice. You should always consult an attorney to determine your rights and options if you are placed into deportation proceedings, receive a Notice to Appear before an immigration judge, or are detained or arrested.
* * * * *
New! Heather's updated Frequently Asked Questions(FAQ) and Answers on Unlawful Presence Waivers - May 2010
* * * * *
New Arizona Anti-Immigration Law
4/27/2010 update On Friday, April 23, 2010, Arizona Governor Jan Brewer signed S.B. 1070, legislation that its supporters call the toughest state anti-immigration law in the country and that, in the opinion of nearly all within my profession, runs afoul of the United States Constitution. Among its unconscionable provisions, S.B. 1070 does the following:·
Authorizes an official or agency of the state, county, city, town or political subdivision to stop and determine the immigration status of any person if "reasonable suspicion" (whatever that means!) exists to believe that person is an alien unlawfully present in the United States;·
Permits any law enforcement officer to arrest, without warrant, any person if the officer has probable cause to believe that the person is an alien and has committed an offense that would make him or her removable from the United States (i.e., calls for racial profiling);·
Prohibits officials or agencies of the state or any political subdivision from adopting or implementing policies that limit immigration law enforcement;·
Expands the definition of a criminal trespass to include any person on public or private land in Arizona who is not in possession of documentation establishing his or her lawful status in the United States; (we must all carry papers with us at all times in Arizona to be able to prove our legal status - how many US citizens carry their passports or birth certificates with them?)·
Permits the State of Arizona to make a “final determination” of an alien’s immigration status if required to enforce S.B. 1070;·
Prohibits any motor vehicle from stopping to hire or hire and pick up any person who will work at a different location;·
Creates a Class 3 Felony for failing to verify employment through E-Verify and/or maintaining records of such verifications; and·
Permits the State of Arizona to maintain information about the immigration status of any person.
The AILA (American Immigration Lawyers Association) membership, of which I belong and hold a national leadership position in, is outraged and appalled by the passage of this offensive law in Arizona. We believe it violates not only the United States Constitution, but basic human rights.
* * * * *
Look up the Latest Processing Times on Immigration Cases
U.S. Citizenship & Immigration Services: (Service Centers & Local District CIS offices)
Visa Bulletin (the visa backlog for family & employment cases subject to the preference categories)
Consulate processing times
The above information is general in nature and is not intended to be considered or relied upon as legal advice. You should always consult an attorney to determine if what immigration options are available to you and to determine how any recent changes in the law could affect your situation.