Deportation & Removal

Deportation and Removal Process

Removal proceedings are used to determine whether a non-U.S. citizen, or “alien,” should be deported, that is, expelled from the U.S.


The deportation and removal process  is complicated and there are many steps to follow. If you are in removal process right now, or might be subject to removal in the future, you should be aware of some things about how the removal process works.

DEPORTATION AND REMOVAL PROCESS STARTS

The removal process usually begins by U.S. Dept. of Homeland Security (DHS) issuing you a Notice to Appear (“NTA”). This document identifies your name and the country in which you were born, orders you to appear before an Immigration Judge (“IJ”), and gives you other information, such as:

  • Why you are being ordered to appear before the IJ
  • How you allegedly broke the law
  • Your right to have an attorney (who you will have to hire and pay for)
  • The consequences of your failure to appear at the hearing
Once the IJ determines that the information on the NTA is correct and that you can be deported, you can apply for relief from removal. If you are eligible for any such relief, another hearing will be held. If you are not eligible, then the IJ will order your deportation.

RELIEF FROM REMOVAL

Several types of relief from removal are available that will allow you to stay in the U.S. The most popular processes are:

 

  • Cancellation of Removal
  • Adjustment of Status
  • Asylum

 

Cancellation of Removal – Your removal is cancelled or stopped by the IJ. The availability of this relief is different for a lawful permanent resident (LPR), such as an alien with a “green card”, than for a non-lawful permanent resident (non-LPR), such as an undocumented alien.


If you are an LPR, you are eligible if:

 

  • You have lived in the U.S. for 7 straight years after you were admitted.
  • You have been an LPR for at least 5 years.
  • You have never been convicted of an aggravated felony, and you are an exchange visitor.
  • You have never been granted cancellation of removal in the past.


 

If you are a non-LPR, you are eligible if:

 

  • You have lived in the U.S. continuously for at least ten (10) years
  • During the 10-year period, you were not served with an NTA and/or you did not commit certain crimes
  • You were a person of good moral character during the 10-year period
  • You show that your removal would result in exceptional and extremely unusual hardship to your spouse, parent or child, and that the spouse, parent and/or child is either a U.S. citizen or an LPR.

 


Adjustment of status – When an alien changes his or her status from non-immigrant to lawful permanent resident. Several conditions must be met to qualify for this relief, including:

 

  • You must be admissible for permanent residence, for instance, you are not inadmissible under the INA, AND
  • An immigrant visa is immediately available for you at the time you apply for an adjustment of status. Aliens who qualify for visas allowing an adjustment of status will frequently have petitions that were filed by a spouse or other immediate family member who is a U.S. citizen, or LPR, or an employer.

 



You are NOT eligible for adjustment of status if

 

  • You failed to appear at the removal proceedings after being served with an NTA
  • You entered the U.S. illegally (you were not interviewed by an immigration officer at the time you crossed the border
  • You violated the restrictions on your temporary visa (you stayed in the U.S. beyond the expiration date of your visa status


 

Asylum can be granted to an alien who qualifies as a “refugee.” Generally, you have to show an inability to return to your native country because of past persecution or a well-founded fear of future persecution based upon your race, religion, nationality, membership in a particular social group or political opinion.


However, you are usually not eligible for asylum if you did not file an asylum application within the first year after you entered the U.S., you have been convicted of an aggravated felony or DHS considers you to be a danger to national security.


There are other types of relief that might be available to you if you’ve been ordered deported. So, it is critical that you examine the INA completely, or seek the advice of an experienced immigration law attorney so that you know all of your options.



Suggested Questions for Your Immigration Attorney

 

  • I moved from California to Memphis, but just received an NTA that orders me to appear at Immigration Court in California. Do I really have to travel to California:
  • I entered the U.S. 16 months ago under a temporary visa. I did not apply for asylum at that time because I fully intended to return home. Since that time, however, the government has changed and it is no longer safe there for me and my family. Can we apply for asylum now?
  • How long with the deportation hearing take?

 

Deportation and removal cases are very fact specific. A consultation with a deportation lawyer will be necessary to verify your eligibility and develop a winning strategy to avoid any problems which could develop with your case.

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