DEPORTATION AND
REMOVAL
Leading Deportation and Removal Defense Attorneys in Detroit
Bajoka Law — Federal Deportation and Removal Defense Lawyers
WHAT IS DEPORTATION AND REMOVAL?
The terms “deportation” and “removal” actually mean the same thing. “Removal” is simply the legal term for what is commonly known as deportation. Removal occurs when the United States government orders that a non-citizen be removed from the country. The most common reasons that a removal is ordered is when that non-citizen violates certain criminal laws and/or immigration laws. Once that person is deported, he or she may lose the right to ever reenter the United States, even as a visitor. Immigration & Customs Enforcement (ICE) has been given even more power in recent years over people with non-citizen status. Even if you have a green card and are a permanent resident, that does not mean that the government will not remove you for breaking certain laws. What is most important to understand is that removal is a legal proceeding. A non-citizen who is subject to this proceeding also has a number of legal rights to challenge their removal which can be on procedural or constitutional grounds.
THE REMOVAL PROCESS
- A Notice to Appear is generated by ICE with information about the non-citizen along with the reasons for the removal.
- A hearing is scheduled, and the non-citizen is given the opportunity to proceed or is given time to hire an attorney.
- Once the non-citizen is ready to proceed with or without an attorney, then the non-citizen will be asked to verify the information in the Notice to Appear.
- If the immigration judge then determines that the information on the Notice to Appear is correct, then the non-citizen will be ability to apply to any form of relief from removal. If the non-citizen is eligible and applies for relief then a hearing date is scheduled to determine if that relief is appropriate. If the non-citizen is not eligible or does not apply for relief, then removal is ordered.
- If a hearing is held for relief, then the non-citizen will be able to present evidence, testify, and have witnesses testify on the non-citizen’s behalf. The immigration judge will make their decision at the conclusion of this hearing.
CLASSES OF DEPORTABLE NON-CITIZENS
A non-citizen is subject to removal if he or she:
- Is an inadmissible alien
- Is present in the United States and violating immigration laws
- Violated a condition of legal entry into the United States
- Was convicted of certain specific criminal offenses
- Falsified entry documents
- Encouraged or helped another non-citizen to enter illegally
- Unlawfully voted
AVOIDING REMOVAL
If a non-citizen is marked as removable, then they may be able to apply for various forms of relief to prevent being removed from the country. There are two categories of relief to avoid removal; discretionary relief and administrative/judicial relief.
- DISCRETIONARY RELIEF
Discretionary relief can be available to a non-citizen if they can prove to the court that they are eligible for this relief under law and are deserving of the immigration judge’s discretion in giving the relief. The four main categories of discretionary relief are as follows: - Cancellation of Removal
A cancellation of removal changes the non-citizen’s status from “deportable” to “lawfully admitted for permanent residence.” This is the outcome and relief that every removal case should look for first. There are a number of requirements you must meet in order to be eligible for this form of relief. - Asylum
If you qualify as a refugee, you may be able to gain relief under an asylum designation. A successful asylum application has to show that returning to his or her home country is dangerous because of past persecution or there is a legitimate fear that the applicant will be persecuted because of race, political views, religion, nationality or membership in a particular group. An Asylum claim should be filed within one year of arriving to the United States. - Adjustment of Status
This relief is where a non-citizens status gets changed from a temporary nonimmigrant or visitor to a permanent resident. This type of change is most common when the non-citizen is petitioned for by their married spouse, family member, or employer. - Voluntary Departure
This relief is the sort that does some damage control for the possibility of reentry. If all other forms of relief are not available, then a non-citizen is given the option to “voluntarily depart” from the United States. If the non-citizen does this then they are admitting removability but are not prevented from seeking future entry to the United States. - ADMINISTRATIVE/JUDICIAL RELIEF
Administrative and judicial types of relief should be viewed like appeals. These types of relief are available to a non-citizen after their removal hearing is over. The goal in one of these challenges is to overturn an order issued by an immigration judge in a removal proceeding. - Administrative Appeals and Judicial Review
If the non-citizen or the government disagrees with the ruling made by an immigration judge, then they can appeal that ruling to the Board of Immigration Appeals (BIA). The BIA has the highest authority over immigration and removal cases. The BIA must receive an appeal within 30 days of the date an order was issued by an immigration judge. Federal Court may also be an option for an appeal, and a non-citizen has 30 days to file their appeal there.
Your best chance to win your removal case is while your case is pending. It is important to put forward your strongest case with an experienced deportation and removal defense attorney. You have one chance to do it right.
ANY FURTHER QUESTIONS?
If you or a loved one is facing the possibility of removal or a removal proceeding has already started, you might be asking yourself, what do I do now? Finding a website such as this can be a great resource, but it is not a substitute for the advice of an experienced attorney.
EXPERIENCE MATTERS
Most attorneys have never stepped foot in an immigration courthouse, much less have actually been successful in removal proceedings. Do you really want your case to be the first your attorney has actually defended in immigration court? While the answer to that question might be easy, choosing the right attorney might not be as simple. The right attorney for a removal case is not someone looking to sign up every person that walks through their door. The right attorney for a removal case is one that has the proper experience, time, and resources to put into defending your case against the power of the government. The United States government has unlimited resources when it comes to investigating and building cases. Your first step towards leveling the playing field is hiring an attorney who brings years of successful deportation and removal defense experience to the table. At Bajoka Law, we lean on this past experience to help bring future success.
Read more on Deportation and Removal
OPERATION BROKEN PROMISE AND VOLUNTARY DEPARTURES EXPLAINED Operation Broken Promise is an immigration enforcement measure implemented by Immigration and Customs Enforcement (ICE) to target and arrest noncitizens who had previously agreed to a voluntary departure but never left. In some cases, undocumented noncitizens are left with a choice to either agree to leave the country by a certain date or be forced to by a formal deportation. The main benefit of an agreement for voluntary departure is that you are not prohibited from seeking a legal return to the United States in the future. If you are deported, you face an automatic bar to legal reentry into the United States. Voluntary departure is not available in all immigration cases. An individual may be permitted a voluntary departure as opposed to deportation if the immigration judge finds that: The individual has been physically present in the United States for at least one year immediately before the notice to appear was properly served; The individual is and has been a person of good moral character for at least the most recent five years; The individual is not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4) of the INA; and The individual has convinced the court by clear and convincing evidence that he or she intends to depart the United States and has the means to do so. While most people follow through with their agreement to voluntarily depart, not everyone does. If an individual agrees to voluntarily depart, and then fails to do so, they are subject to arrest and face other penalties. The penalties for a failure to depart as promised through an agreement for voluntary departure include: A fine of not less than $1,000 and not more than $5000; and Becoming ineligible to file for relief under various sections of the Immigration and Nationality Act (INA) for a period of 10 years. Note: Any illegal reentry after a formal deportation is a felony charge that is punishable by up to 20 years in prison upon conviction. If you have specific questions about you or a loved one’s immigration case, it is important to seek the advice of an experienced deportation and removal attorney as soon as possible. ICE RELEASES UPDATE ON ENFORCEMENT In November 2020, ICE officials announced Operation Broken Promise as a nationwide effort to arrest and remove individuals who have not “kept their promise” to the United States government when they agreed to a voluntary departure. Individuals who are granted a voluntary departure typically have between 60 to 120 days to arrange travel and leave the United States. As of the latest press release from ICE, more than 150 individuals have been arrested by ICE Enforcement and Removal (ERO) officers. 117 of these individuals were people who failed to depart within the agreed upon time frame. This leaves 30+ individuals who were taken into ICE custody for other reasons. This enforcement measure is expected to continue until any change in policy is made by the federal government. HOW DOES THIS AFFECT ME? Hopefully, this doesn’t affect you. But if you or a loved one is facing the possibility of deportation or removal, then this can affect you directly. An agreement for voluntary departure is not one that is given to everyone, and as such, the federal government has an interest in enforcing its agreements with those it feels were given a break and not forced to face the normal deportation process and consequences. We expect that enforcement measures such as this to continue even through a Biden presidency. If you have questions related to voluntary departure, deportation, and how the process works to fight to stay in the United States, then give us a call at Bajoka Law today so we can help.
The Importance of Proper Legal Counsel at Every Stage of Any Immigration Case ORIGINAL IMMIGRATION CASE DETAILS IN THE MATTER OF R-C-R In the immigration case of the Matter of R-C-R- , a citizen of Guatemala entered the United States unlawfully in March of 2019. He was detained by the Department of Homeland Security (DHS) and was charged with removability as a non-citizen being present in the United States without being properly admitted and further not being in possession of any valid entry documents at the time he attempted to enter the United States. R-C-R- remained detained until a video conference hearing in early November 2019, where he appeared without counsel. During this hearing, R-C-R- admitted his removability (through an interpreter) and also expressed his desire to apply for asylum, withholding of removal and wanted relief under the Convention Against Torture (CAT). R-C-R- was then given an Application for Asylum and for Withholding of Removal (Form I-589) to complete. R-C-R- was instructed by the immigration judge to submit his applications for relief in early December even though R-C-R- ‘s next hearing was already scheduled for mid-January 2020. If the applications were not received in time, then his applications would be considered waived. A week after the deadline had passed, the immigration judge found that R-C-R- had waived his opportunity by not filing his applications in time and ordered him to be deported. R-C-R- appealed to the Board of Immigration Appeals (BIA) and argued that his due process rights were violated by the immigration judge in setting his application deadline ahead of his next hearing and further not allowing R-C-R- to explain why he missed the deadline. He also argued that he did not have a fair hearing because he was without an attorney, in custody, and forced to communicate through an interpreter. BOARD OF IMMIGRATION APPEALS RULING The BIA sided with the immigration judge and found that he or she can set a different deadline if he or she wishes, and further that this deadline can be final. The BIA also ruled that R-C-R- failed to meet his burden of proof in establishing that he was deprived of a full and fair hearing even though his hearing was conducted while he was in custody, speaking through an interpreter on videoconference without legal counsel. This case underscores the importance of proper legal counsel at every stage of any immigration case, as R-C-R- was never able to have counsel before the immigration judge dismissed his case and ordered him removed. HOW DOES THIS AFFECT ME? This case will undoubtably be used by immigration judges to set deadlines which can result in asylum claim dismissals before claimants have any real opportunity to present their cases. If you or a loved one is facing the possibility of deportation and removal, then this can affect you directly. Any claims for asylum or relief under the Convention Against Torture can be in jeopardy due to arbitrary final deadlines that immigration judges can make. The ruling in this case is a blow against due process for asylum claimants. It is important to have representation from an experienced deportation and removal attorney from the beginning of any immigration related case if possible. As the ruling in Matter of R-C-R- has shown us, due process can be given and taken away quite easily by immigration judges. The BIA has set a dangerous standard with this ruling which is terrible for asylum claimants and other immigrants seeking relief. Changes in immigration law are constant in our current society. It is important to understand how the law affects you as ignorance of the law is not a defense.
THE CASE OF FLORES V. BARR Back in 1997, the United States entered into an agreement with a class of minors who were subject to detention by United States immigration authorities. This agreement, known as the Flores Agreement, provides that once the government apprehends any undocumented minors, they have to transfer them to a licensed children’s shelter within three days. In March 2020, the Centers for Disease Control (CDC) issued an order closing the border to entry into the United States from Canada or Mexico, citing the dangers of the spread of COVID-19. Thereafter, a motion was filed on behalf of undocumented migrant children which sought to enforce the rules as agreed to by the United States government under Flores. The United States District Court for the Central District of California appointed an independent monitor to oversee how the government was operating in dealing with unaccompanied minors and to determine if the government was following the Flores Agreement. In August 2020, the independent monitor reported to the court that the Department of Homeland Security (DHS) since the CDC order had held 660 minors between the ages of ten and seventeen for stays as long as 28 days in hotels instead of the normal approved child shelters. The District Court found that the government was not complying with the Flores agreement because they were holding the minors longer than three days and made no good faith effort to actually place minors in licensed facilities as required. In actuality, the government was using this method to deny these minors access to legal counsel and the ability to properly claim asylum. After their stay in the hotels, the children were then removed from the United States without following typical procedure. The government appealed the District Court’s ruling to the Ninth Circuit Court of Appeals and filed an emergency motion seeking a stay pending appeal. NINTH CIRCUIT COURT OF APPEALS RULING On October 4th, 2020 the Ninth Circuit Court of Appeals denied the government’s request for a stay pending appeal. The Court noted that the District Court’s order does not require them to do anything additional to the Flores agreement and simply directed the government to come into compliance with Flores. The Ninth Circuit Court found that the government was not likely to win the case on the merits anyways, and as such a stay would not be appropriate. The court also found that the government was not able to establish a likelihood of irreparable injury if a stay was not granted. Simply put, the Ninth Circuit Court flatly rejected the government’s arguments in this case, and further required them to follow the District Court’s order until the case is fully heard at the Ninth Circuit Court of Appeals. THE CONTINUING PROBLEM OF CHILD EXPULSION Immigrant rights advocates claim that actions like these by the federal government are using the pandemic as a pretext to bypass the typical and legal asylum process for children. The Trump administration has expelled nearly 9,000 migrant children citing the COVID-19 pandemic without using the typical steps of the asylum process. There is a real assault on asylum due process currently occurring in the United States. Each step the government takes to chip away at due process for people that were not born in this country further complicates immigration law and practice. Do not ever go it alone; It is important to that you have experienced and knowledgeable legal counsel if you are facing immigration crimes levied against you by the federal government and Immigration and Customs Enforcement (ICE). If you have any questions about you or a loved one’s case, then it is important to seek the advice of an experienced immigration crimes attorney as soon as possible.
The History and Role of the Board of Immigration Appeals (BIA) The Board of Immigration Appeals (BIA) is an administrative appellate body that works within the Executive Office of Immigration Review of the United States Department of Justice. Decisions that immigration judges make can be reviewed by the BIA, where the BIA can either affirm, reverse, or remand a judge’s decision regarding removal proceedings or other immigration issues. The BIA is headquartered in Falls Church, Virginia, and issues its decisions in the form of three-member panels who review and decide cases. In general, the BIA does not conduct courtroom proceedings; it decides appeals by conducting what is called a “paper review” of cases. The majority of the cases that are reviewed by the BIA are cases involving dep ortation and remo val . The BIA also hears cases involving immigrant visa petitions involving family members as well as cases of non-citizens applying for admission to the United States for various reasons. Most BIA decisions are subject to review by federal appellate courts. Federal appellate courts have the power to affirm, reverse, or remand BIA decisions the same way the BIA has power over immigration court decisions. RECENT CHANGES IN THE BIA Prior to the Trump administration, the BIA was comprised of 17 members. Under the Trump administration, the BIA increased its membership to 23 members. This increase in board members coincides with an incredible increase in cases in immigration court. The end of 2019 saw records set as there were approximately four times as many cases in immigration court as the year prior. Nine career members of the BIA who were appointed prior to the Trump administration were offered buyouts to leave the BIA, but none took the buyout offer. They have since been “reassigned” to other roles within the DOJ. To fill both these existing positions and newly formed positions, the Executive Office of Immigration Review (EOIR) in conjunction with Attorney General William Barr appointed new judges to the BIA. The 9 most recent hires to the BIA include immigration judges who reportedly denied in excess of 90% of asylum claims in their courts. This expansion has led to criticism that the BIA has lost its impartiality and is only seeking to push the anti-immigration agenda of President Trump. Whatever the reasons, the makeup of the BIA has significantly changed since the result of the 2016 elections. HOW DOES THIS AFFECT ME? If you are facing the potential of deportation and removal, this affects you directly. In 2018, there were approximately 250,000 immigration cases pending in the immigration court system. That number increased to over 1,000,000 cases by the end of 2019. The caseload has not only grown, it has shown this administration’s initiative to make immigration to the United States as difficult as possible. This increase in cases has left many people searching for answers and looking for help in trying to defend against the power of the federal government. If you are facing deportation and removal from the United States, then it is important that you speak to an experienced federal immigration defense attorney immediately. Non-citizens and even green card holders can be removed from the United States for a variety of reasons. Whether you have committed a criminal offense or have fallen out of legal status due to overstay or other reason, the federal government in conjunction with Immigrations and Customs Enforcement (ICE) is not taking these cases lightly. This increase of immigration cases across the United States has not come by accident, and it will only continue to increase during the current administration.
