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Removal is an administrative proceeding whereby the federal governments attempts to remove a non-citizen from the United States and return that person to his or her native country – or another country that agrees to accept him or her. An alien who is subject to this procedure has legal rights that may prevent the issuance of a final removal order.
A Person may find himself of herself in removal proceedings because he/she is deportable or inadmissible according to the federal government. Even though deportation cases and inadmissibility cases are placed in the same administrative removal proceedings the possible defenses are very different very depending on which category you fall into.
What is the Difference Between Deportation and Inadmissibility?
It is common practice to refer to the process as “Deportation.” Persons will often state that they are “being deported.” This isn’t always the case. Sometimes a person is not being deported. He or she may be found inadmissible and removed. The distinction between inadmissibility and deportation proceedings has been eliminated.
Aliens subject to removal from the United States – regardless of whether they are deportable or inadmissible – are placed in the same removal proceedings. Thus, the removal proceeding is now generally the sole procedure for determining whether an alien is inadmissible, deportable, or eligible for relief from removal.
Defenses to Deportation:
Each possible defense to inadmissibility carries specific requirements that must be met or the applicant does not qualify. To determine whether you qualify for a defense to inadmissibility your case must be thoroughly reviewed. In addition to defenses, a waiver, permission to re enter the United States may need to be filed in your case.
Any person that that is in the United States and not a U.S. Citizen may be subject to deportation if he or she:
- Is present in the U.S. in violation of the Immigration and Nationality Act or any other U.S. law;
- Violated non immigrant status or a condition of entry into the U.S.
- Terminated a conditional permanent residence.
- Encouraged or aided any other alien to enter the U.S. illegally.
- Engaged in marriage fraud to gain admission to the U.S.
- Was convicted of certain criminal offenses ( see our criminal defense for the alien page)
- Failed to register or falsified documents relating to entry in to the U.S.
- Engaged in any activity that endangers public safety or creates a risk of national security; or
- Engaged in unlawful voting.
If a person is deported as the result of any of the foregoing he or she is then inadmissible. The deported person may be eligible to file a waiver to return to the United States. It is very important that you contact us as soon as you receive an NTA or an immigration Hold is put on you. Whether or not you qualify for a waiver will be directly related to the removal proceedings.
Defenses to Inadmissibility:
Each possible defense to inadmissibility carries specific requirements that must be met or the applicant does not qualify. To determine whether you qualify for a defense to inadmissibility your case must be thoroughly reviewed. In addition to defenses, a waiver, permission to re enter the United States or permission to return to a n relinquished domicile may need to be filed in your case.
- USCIS processing on an Initial Petition and Judicial Adjudication,
- Cancellation of Removal,
- Convention Against Torture,
- Voluntary Departure,
- Petty Offense Exception.
If you can show to a border patrol officer that you meet certain criteria you may be eligible for this exception. If eligible you will be found admissible regardless of your criminal conviction or admission. To qualify for the “petty offense exception”, an applicant for admission to the United States must show:
a.) he or she committed only one crime involving moral turpitude;
b.) the maximum penalty possible for the crime did not exceed imprisonment for one year; and
c.) the non citizen seeking admission was not sentenced to a term of imprisonment longer than 6 months.
The Petty Offense Exception does not stand alone. This means that you must have a basis for adjusting status or maintaining a non immigrant visa in addition to this exception if you desire to remain or re enter the United States.
The Removal Process
- A Notice to Appear (NTA) is issued by ICE , served on the alien, and filed with the immigration court. In addition to containing general information about the immigrant (name, country of origin, etc.), the NTA also states the legal basis for which the government wants to deport you.
- A master hearing is scheduled, at which time the immigration judge asks if the alien is ready to proceed with the case, or if he or she needs time to secure an attorney. If the alien needs time to secure an attorney, a hearing is scheduled for a later date.
- Once the alien has an attorney, or has elected to proceed without one, the alien will be asked by the immigration judge to verify the contents of the NTA.
- If the judge determines that the information in the NTA is correct and that the alien can be deported, the alien is given the opportunity to apply for any form of relief from deportation that he may qualify for. If the alien is eligible for a form of relief an individual hearing date is scheduled. There are a number of defenses to removal. the defense you qualify for will depend on many factors. It is very important that you discuss the specifics of your case with a qualified attorney in order to determine what defenses you may qualify for. There may be more than one master hearing before the Judge schedules your final hearing called an individual hearing.
- At the individual hearing the alien will be given the opportunity to give testimony and present witnesses on his or her behalf. At the conclusion of the hearing, the immigration judge will either make an oral decision on the matter, or will release a written decision at a later date.
- The alien that has been ordered removed has 30 days from the date of the decision to appeal to the Board of Immigration Appeals (BIA). If the BIA decides against the alien, the alien has the option of appealing to the appropriate U.S. Court of Appeals. The immigration service also has the right to appeal an unfavorable decision, but may not appeal an unfavorable decision by the BIA. An appellate court decision can be appealed to the U.S. Supreme Court by either the alien or the immigration service.
To determine whether you qualify for any of the foregoing requires an examination of your immigration case, the records of your criminal case., and the applicable law. If you qualify for the petty offense exception you may enter the United States without the necessity of filing a waiver. Rather then attending an interview at the U.S. Consulate before being admitted the decision to admit or not to admit you lies entirely with the inspecting officer at the U.S. port of entry. This officer is the person that must be convinced that you are admissible under the petty offense exception. Thus, it is important that you approach the border with the facts of your case together with the applicable law so that you can assure the officer that you you qualify for the exception.
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