Removal / Deportability Grounds

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 What are Removal Proceedings?

A removal proceeding is a type of legal process that is connected with a removal case. A removal hearing may be required if an alien commits a certain crime or violation, including:

  • Entering into the United States illegally;
  • Committing certain felonies; and
  • Committing certain offenses repeatedly.

A removal proceeding is generally held before an immigration judge who is appointed to hear removal cases. These proceedings may involve participation from other individuals including attorneys and members of an immigration board who are trained to review removal cases.

Who is Subject to Removal Proceedings?

A non-citizen alien who is suspected of being removable may be subject to removal proceedings. These types of proceedings are typically done on an individual, case-by-case basis.

Grounds for removal or deportability may include:

  • Overstaying a visa;
  • Violations of criminal statutes;
  • Denial of immigration petition applications; and
  • Other problems or issues which may make an individual’s presence in the United States illegal.

An individual is summoned to a removal proceeding by a Notice to Appear (NTA). This notice informs the individual of their case and instructs them further regarding the removal proceedings.

What Can be Expected During Removal Proceedings?

During removal proceedings, an individual can expect a thorough examination of the evidence that is related to their removal case. During these proceedings, the individual is allowed to present their case to the immigration judge, which may include:

  • Statements from witnesses;
  • Expert testimony; and
  • Evidence, for example, documents.

All of these may be used to help prove that the individual should not be removed from the United States.

What Should I Know about the Removal or Deportation Proceeding?

An alien who is placed in a removal or deportation proceeding, there are certain rights that they possess. For example, during the removal or deportation hearing, courts have held that aliens are entitled to have the assistance of an attorney.

Attorneys, however, are not appointed and the alien is provided time to find an attorney. Other issues that aliens should be aware of before arriving at the removal or deportation hearing include:

  • The hearing is held in the district of the alien’s arrest or their residence;
  • The main functions of the immigration judge are to determine deportability and to establish the country of the alien’s deportation;
    • The judge also controls the conduct of the hearing and has the power to grant continuances;
    • At the end of the hearing, the judge will render their decision;
  • A trial attorney may be assigned to all removal or deportation cases in certain districts;
    • This attorney presents evidence on behalf of the Government and may examine the alien and witnesses; and
  • Interpreters are important in the deportation process;
    • At the hearing, the Government will furnish an interpreter;
    • In certain cases, an alien may be allowed to bring in their own interpreter to monitor the correctness of the translation; and
    • Counsel should ensure that the interpreter speaks the same language and dialect as the alien.

What are the Grounds of Removal or Deportability?

There are numerous grounds for removal or deportability, including:

  • Inadmissible at time of entry:
    • Any alien who was inadmissible at the time of their entry or adjustment of their immigration status is deportable;
    • Those who are present in violation of any United States law are deportable;
    • A nonimmigrant, or an individual who only planned to visit the U.S. for a short period of time, who violates their nonimmigrant status and any alien who has violated the conditions of their entry, is deportable;
    • Any alien who has, in any way, assisted in smuggling another alien into the country is deportable; and
    • Those who have obtained a visa or other documentation on the basis of a fraudulent marriage are deportable;
  • Criminal offenses:
    • An alien who has committed a crime of moral turpitude, or an act which is intrinsically wrong, may be deportable;
      • It is not clear exactly what constitutes crimes of moral turpitude but is based upon the moral standards prevailing in the United States;
    • Those convicted of multiple crimes or an aggravated felony, for example, murder, drug trafficking, or a theft in which the term of imprisonment is over one year, may be deportable;
    • Drug abusers or addicts, and those who violate controlled substances laws or regulations may be deportable; and
    • Those who commit certain domestic violence crimes or firearms offenses may be deportable;
  • Failure to register or falsification of documents:
    • Those who have changed their address without notifying the Attorney General within 10 days may be deportable;
    • Any alien convicted of fraud or misuse of visas may be deportable; and
    • Any alien who has falsified an immigration document is deportable;
  • Security:
    • Those who have been or are engaged in acts of espionage, or the illegal export of goods, technology, or sensitive information, or sabotage, or activities relating to the overthrow of the U.S. government, against the U.S. are deportable;
    • Those who have or are engaged in terrorist activities are deportable; and
    • An alien whose presence the Secretary of State has reason to believe would cause a serious, adverse effect on foreign policy is deportable;
  • Economic:
    • Those who have become a public charge, or those who end up on welfare, from causes existing prior to admission may be deportable; and
  • Unlawful voters:
    • Any alien who has illegally voted in an election is deportable.

Can the Results of Removal Proceedings be Appealed?

In certain cases, the results of a removal proceeding may be appealed. This applies especially in cases where there was an administrative error in the process, for example, a defect with the Notice to Appear or an administrative oversight.

If an appeal is not permitted or granted, the individual will be removed from the United States. Aside from appeals, some non-citizens may be granted relief from deportation, for example, through a cancellation of removal or a temporary suspension.

These are granted on a case-by-case basis and typically require the assistance of an attorney.

What is a Stay of Removal?

A stay of removal refers to a temporary postponement of the removal of the alien from the United States. A stay of removal is often administrative in nature, for example, when the immigration court needs to sort out a legal issue before an individual can be removed.

Therefore, a stay of removal is not a permanent stop of the removal order as with a cancellation of removal because of a hardship or other reason.

Who is Eligible for a Stay of Removal?

In the majority of cases, it is up to a judge to determine which individuals are eligible for a stay of removal. This is typically done on an individual, case-by-case basis.

There are two basic categories of stays of removal, including an automatic stay of removal and a discretionary stay of removal. An automatic stay of removal is available when an appeal is filed within the required time frame under immigration rules.

The stay will be automatically granted under certain conditions. This may occur when the final outcome of the immigration case is pending before an immigration judge.

A discretionary stay of removal allows an immigration judge or panel to stay a removal at their own discretion, or choice. This is typically available if there is one of the following in effect:

  • An appeal;
  • A motion to reconsider; or
  • A motion to reopen.

Because of this, a stay of removal is more of a procedural issue than one of the more specific forms of relief from deportation or removal.

Should I Contact an Attorney?

If you or a loved one are being deported or you believe that you may be removed or deported, it is important to consult with an immigration attorney. Your attorney can advise you of your rights in this complicated area of the law.

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