The
Law Offices of Harry DeMell provides professional
services to defend against deportation and removal of aliens
from the United States. Mr. DeMell has for 29 years defended
aliens from removal and is experienced in the area of criminal
deportation. Among the services provided include
Representation in any Immigration Court in the United States
and at the Board of Immigration Appeals
Appeals to the Federal District Courts, Courts
of Appeal and the Supreme Court of the United States
Assistance to criminal defense attorneys concerning
the immigration consequences of convictions.
Deportation and Removal Prevention
The
Removal Process
Note:This
summarizes the most common types of immigration
court proceedings. These descriptions are not
fully inclusive and do not encompass the many
regulatory and court interpretations that may
have bearing on the following information. Also,
the descriptions that are
subject to change since Congress may legislate
new laws. Accordingly, the summaries are
intended only to assist the public's general understanding
of the types of immigration court proceedings.
Within the U.S. Department of Justice, more than
200 Immigration Judges located in 53 Immigration
Courts nationwide conduct proceedings and decide
individual removal cases. Removal proceedings account
for approximately 80 percent of Immigration Judges'
caseload. Federal rules of evidence are inapplicable
in Immigration Court; thus, an Immigration Judge
has greater authority to consider most kinds of evidence
in deciding a case. The types of proceedings an Immigration
Judge may preside over are briefly discussed below.
Removal Hearings
Removal hearings are conducted to determine whether
certain aliens are subject to removal from the country.
The distinction between exclusion and deportation proceedings
has been eliminated, and aliens subject to removal
from the United States are now all placed in 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.
The Department
of Homeland Security (DHS), which absorbed the
functions of the Immigration and Naturalization Service
(INS), is responsible for commencing a removal proceeding.
If the DHS alleges a violation of immigration laws,
it has the discretion to "serve" the alien with a
charging document, known as a Notice to Appear. This
document orders the individual to appear before an
Immigration Judge, and advises him or her of, among
other things:
- Nature of the proceedings against the individual;
- Individual's alleged acts that violated the law;
- Individual's right to an attorney; and
- Consequences of failing to appear at scheduled
hearings.
Removal proceedings generally require an Immigration
Judge to make two findings: (1) a determination of
the alien's removability from the United States,
and (2) whether the alien is eligible for a form
of relief from removal. For more information on the
types of relief available to an alien, please contact
our office.
Bond Redetermination Hearings
An Immigration Judge conducts a bond redetermination
hearing for aliens who are in DHS
detention. The alien makes a request to the Immigration
Judge to lower or eliminate the amount of the bond
set by the DHS. These hearings are generally informal
and are not a part of the removal proceedings. This
decision can be appealed (by either the alien or
by DHS) to the Board
of Immigration Appeals (BIA).
Withholding-Only Hearing
An Immigration Judge conducts a withholding-only
hearing to determine whether an alien who has been
ordered removed is eligible for withholding of removal
under U.S. law or the U.N. Convention
against Torture (CAT). For more on asylum contact
our office.
Forms of Relief From Removal
Below is a summary of the most frequently requested forms
of relief that are available to an alien who has been found
to be removable. These descriptions are not fully inclusive,
and are subject to change since Congress may legislate
new laws.
Discretionary Relief
Once an alien in proceedings is found to be removable,
he or she, if eligible, may request one or more types of
discretionary relief. This section describes some types
of discretionary relief that are available during a hearing;
administrative relief and judicial review after a hearing
is completed are discussed below. The alien has the burden
of proving that he or she is eligible for relief under
the law, and usually that he or she deserves such relief
as an exercise of discretion.
Voluntary Departure -- Voluntary
departure is the most common form of relief from removal
and may be granted by Immigration Judges, as well as
the Department of Homeland Security (DHS), which absorbed
the functions of the former Immigration and Naturalization
Service. Voluntary departure avoids the stigma of formal
removal by allowing an otherwise removable alien to
depart the United States at his or her own personal
expense and return to his or her home country, or another
country if the individual can secure an entry there.
It is important to note that aliens granted voluntary
departure must depart within the time specified by
the Immigration Judge. Although an Immigration Judge
has the discretion to set a shorter deadline, aliens
granted voluntary departure prior to the completion
of removal proceedings must depart within 120 days,
and those granted such relief at the conclusion of
removal proceedings must depart within 60 days. In
addition, in order to avoid being penalized for choosing
to appeal a decision rather than depart, the Board
of Immigration Appeals (BIA) usually will extend an
earlier grant of voluntary departure for 30 days. As with
other forms of discretionary relief, certain individuals
will be found ineligible for voluntary departure, and those
granted voluntary departure who fail to depart are subject
to fines and a 10-year period of ineligibility for other
forms of relief.
Cancellation of Removal -- This form
of discretionary relief is available to qualifying lawful
permanent residents and qualifying non-permanent residents.
For lawful permanent residents, cancellation of removal
may be granted if the individual:
- Has been a lawful permanent
resident for at least 5 years;
- Has continuously resided
in the United States for at
least 7 years after having
been lawfully admitted; and
- Has not been convicted of
an "aggravated felony," a
term that is more broadly defined within immigration
law than the application of the term "felony" in
non-immigration settings.
Cancellation of removal for non-permanent residents
may be granted if the alien:
- Has been continuously present for
at least 10 years;
- Has been a person of good moral
character during that time;
- Has not been convicted of an offense
that would make him or her removable;
and
- Demonstrates that removal would
result in exceptional and extremely
unusual hardship to his or her immediate
family members (limited to the alien's
spouse, parent, or child) who are
either U.S. citizens or lawful permanent
residents.
It is important to note that different standards are
used in determining eligibility for victims of domestic
violence.
Asylum -- Under the Immigration
and Nationality Act, the Attorney General may,
in his discretion, grant asylum to an alien who qualifies
as a "refugee." Generally, this requires that the
asylum applicant demonstrate an inability to return
to his or her home country because of past persecution
or a well-founded fear of future persecution based
upon 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. Similar forms of relief
are Withholding of Removal and applications under the
U.N. Convention
against Torture (CAT).
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