The definition of deportation is the act of expelling someone from a country. There are many reasons why someone may find them self in deportation or removal proceedings. Some people may have stayed in the longer than their visas permit or failed to comply with the terms of their visa. Others may hold a valid visa,but committed a crime that makes them deportable.
Just as there are many ways to get in deportation proceedings,there are also many defenses or forms of relief that exist to win your deportation case and remain in the United States. The defenses available and chances of winning depend on numerous factors such as:time in the United States,family in the United States,ties with the United States,the quality of the immigrant’s moral character,etc. If you or someone you know finds themselves in deportation and removal proceedings it is imperative that you hire competent counsel to represent you in these proceedings. The rules and procedure of removal proceedings are very complex and archaic which requires a professional to handle it for you. Also,unlike in a criminal proceeding,the government will not appoint an attorney to represent you if you cannot afford one.
Rights in the Immigration Court
Although an immigrant will not receive a court appointed attorney,he does have the right to have an attorney and be represented in all stages in the proceedings at no cost to the government. This is why finding an attorney who is familiar with the Deportation and Removal process is so important. The immigrant also has the right to have a translator so that they can understand all stages of the proceedings.
The immigrant also has the right to present evidence in favor of his case and contest evidence that the government may introduce that is negative to the immigrant’s case. This is a very important right because many times the government is unable to prove the underlying fact that makes the immigrant deportable. For example,if the government alleges that a person is deportable because they were convicted of an aggravated felony the government must prove this by introduce conviction documents that are certified by the convicting court. Sometimes the government is simply unable to do this either because the conviction actually does not exist or is unable to find the conviction. If the government cannot obtain proper conviction documents then the attorney for the immigrant should make a motion to terminate removal proceedings. If the motion is granted,the immigrant wins his case.
United States Government’s Burden of Proof
As mentioned above,the government has the initial burden of proof to prove that the immigrant is in fact deportable. Once the government can prove alienage or the underlying basis for the deportation the burden then shifts to the immigrant to show why he should not be removed from the country. The burden shifting in removal proceedings is a complicated issue that requires the expertise of someone who is experienced with removal proceedings to represent you.
Mandatory Detention
Once a person has been detained by immigration one of the first questions that should be answered is if the detained immigrant is subject to “Mandatory Detention” or is eligible for a bond. If he has not been given a bond,it may be possible to have a bond hearing before the immigration judge to request a bond. Also,if the detained person has been given a bond,but it is too high,it is possible to request that the immigration judge reduce the bond.
The lowest bond an immigration judge may set by law is $1,500. There is no maximum bond.
Some of the things that the immigration judge will consider in determining whether the person is eligible for a bond is:
-That person’s criminal history
-Roots with the community
-What kind of relief from removal will the detained person seek in the long run
-If the person will be a danger to the community
-etc.
The law says that a person can only have one bond hearing. So if the bond hearing is botched,there is no opportunity to ask for another one unless there is a “material change in circumstances.” For this reason,if you have a loved one who is detained and would like to bond him out of immigration detention,you need to contact an experienced immigration attorney who conducts bond hearings on a regular basis.
10 Year Cancellation for Non-Permanent Residents
One way for a non-permanent resident (someone who does not have a green card) to win your deportation case and receive a green card is to assert a Cancellation claim. An immigrant can have the proceedings “canceled” and become a permanent resident if she can prove all three things to the immigration judge:
1) 10 continuous years presence in the United States
The immigrant must prove that he has at least 10 years continuous presence in the United States in any status,even if it is illegal status. This is a strict requirement in that is has to be at least 10 years to the day and it has to be proven. If a person has 9 years and 11 months in the United States when they were placed in removal proceedings,then he will not qualify for cancellation. If an alien has made a “brief,innocent,casual” trip abroad then he may still be able to meet this requirement.
2) Immediate Family member that is a United States citizen or Legal Permanent Resident
A person applying for cancellation must prove that he has United States citizen or permanent resident immediate family members in the United States. An immediate family member is a parent,spouse,or child. Introducing birth certificates,marriage certificates,etc can prove that you have US citizen or Permanent Resident immediate family.
3) Those immediate family members will suffer extreme and unusual hardship if the alien is deported.
This is by far the hardest element of the cancellation claim to prove. The immigrant must prove that his family members defined in element 2 will suffer extreme and unusual hardship if the immigrant is deported from the United States. Extreme and unusual hardship is much more than proving that they will be sad or miss you. The immigrant must prove that his relatives will suffer if the immigrant is deported and the family remains in the United States and that they will suffer if they have to move to the immigrant’s home country. This is a very high standard of proof. An example of the type of suffering required would be when the immediate family is suffering from a disease that cannot be treated in the home country the immigrant will be deported and the immediate relative is not able to take care of themselves.
4) The alien has displayed good moral character.
The immigrant is barred from proving good moral character is he has certain convictions such as an aggravated felony,certain drug crimes,or crimes involving moral turpitude.
All four of the above elements must be proven by the immigrant in order to prevail with this type of claim. Cancellation of removal for non-permanent residents is a an extremely difficult and complex defense and requires the assistance of an experienced immigration attorney.
Cancellation for Certain Permanent Residents
If you are a green card holder and find yourself in removal proceedings you may be able to use a cancellation defense. Although the requirements for this form of cancellation are less burdensome than that of a non-permanent resident,it is by no means easy. An experienced attorney should be contacted. In order to prevail in a cancellation of removal case the must prove:
1) 7 years continuous presence in the United States in any status
The immigrant must prove that he has at least 7 continuous years in the United States after entering the United States legally in any status. The seven years can even extend after the alien falls out of status (ex:overstays his/her temporary visa). The seven years can be cut off by the issuance of a Notice to Appear or the commission of certain crimes. This is known as the “stop-time rule” and is the barrier to many people being able to assert this defense. This is why an aggressive and experienced attorney should be consulted if a cancellation of removal is necessary.
2) 5 years as a lawfully admitted permanent resident
The alien must be able to prove that he has been a permanent resident for at least five years or more. Luckily the “stop-time rule” does not apply to this requirement.
3) Good moral character
4) Not convicted of an Aggravated Felony
The definition of what an aggravated felony has been an ever expansive term. All criminal convictions need to be carefully examined to make sure that they do not fall within the definition of an aggravated felony set forth in the Immigration and Nationality Act.
Although the requirements to successfully asserting cancellation of removal for a permanent resident are less stringent than those of a non-permanent resident,there are still many obstacles that can prevent an alien from winning his case including the “stop-time rule” and the DHS trying to argue that the alien has been convicted of an aggravated felony. Also,it is up to the discretion of the Immigration Judge as to whether the alien will be granted the cancellation of removal. An attorney with experience in practicing in the immigration court should be consulted in order to present the case effectively and maximize the chances of success.
Other possible defenses to a deportation include (but are not limited to):
-212(C) Relief
-Asylum/Withholding of Removal/Convention Against Torture
-Adjustment of Status in the immigration court