A removal proceeding is just another word for deportation or exclusion proceedings. It is presided over by an Immigration Judge (IJ). These are not Article 3 state or federal judges, but are administrative officers who are considered by the federal government to be mid-level employees; they don’t have a great deal of power. IJs have the power to order someone removed from or to allow someone to remain in the U.S.
Reasons for Deportation
There are multiple possible reasons for deportation: Most often people are placed into removal proceedings because they have been convicted of a crime, they have violated an immigration law or laws, have overstayed their visa or status or committed fraud of some variety.
After an immigration arrest, it is impossible to tell how soon someone, or even if, they will be deported.
If someone is a violent criminal and is picked up directly from jail by the DHS, he or she will be taken into custody and kept in custody until his or her country issues a travel document, and then he or she will be deported. When that will be depends on the country and the individual’s case status.
Defenses to Removal
Defenses to removal are varied and many. Some people are able to remain in the United States by applying for political asylum and being granted political asylum. If a person is married to a U.S. citizen, another form of relief is applying for adjustment of status.
Cancellation of Removal
Other people who have been here long enough are able to apply for and obtain what is called “cancellation of removal,” generally requiring that a person has been in the United States a certain amount of time, has been a person of good moral character during that time period, has not committed an aggravated felony, and in the judge’s discretion is deserving of being allowed to remain in the U.S., generally because his or her close relatives who are U.S. citizens or permanent residents will suffer a high level of hardship.
When we are talking about cancellation or removal for nonpermanent residents, that type of hardship must reach the level of exceptional and extremely unusual.
Adjustment of Status
Other defenses to deportation will involve the applicant being allowed to file for adjustment of status. That is, he or she is eligible to obtain a green card because they have a close adult relative who is a U.S. citizen. Sometimes even a green card holder relative can be enough.
Technicalities as a Defense
One type of defense to removal is to just show that the person is not removable under the ground that is alleged. Often, someone can win on a technicality that in fact they are not removable under the immigration law that is alleged on the notice to appear.
Filing for Prosecutorial Discretion
Filing for prosecutorial discretion (a type of deferred action), is also a defense to removal. Once someone is deported, they are generally barred from reentering the United States. However, if within the period off time they are required to remain outside of the U.S. (i.e., are inadmissible), they are eligible to come back because of a familial relationship who can obtain a green card for them, they are allowed to file a Form I-212 waiver, which is advanced permission to apply for a green card.
Forms, Petitions and Waivers
The I-130 is a family petition. If the I-130 is approved, there may be a chance for the person to apply for and pick up an immigrant visa in conjunction with an I-212 waiver and any other waivers that are necessary such as an I-601 waiver (for fraud or a criminal conviction).
Deportation Appeals: Board of Immigration Appeals (BIA)
There is a deportation appeals process. One can appeal an order of removal issued the immigration judge to the Board of Immigration Appeals (BIA), in Falls Church, Virginia.
One can appeal a BIA decision that it upholds an order of removal once the order is filed to their circuit court of appeals. Here, in San Francisco, we are governed by the Ninth Circuit Court of Appeals.
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