Immigration courts use the removal process in order to determine whether a person should be removed (deported) from the country. Removal can apply to aliens for various reasons. For instance, an alien may become subject to removal/deportation if they entered the country illegally, or if they commit certain types of crime.
Typically, it is an immigration judge or officer who will determine whether someone can remain in the United States. Anyone in the United States who is not a U.S. citizen could be subject to removal proceedings.
Deportation and removal refer to the same concept. Removal is the legal term for deportation; the two words are used interchangeably. There are three main steps:
- Removal proceedings
- Ordered to deport
- The act of removal/deportation
These proceedings are generally held before an immigration judge who is appointed to hear removal cases. Attorneys and members of an immigration board who are trained to review removal cases may also be involved in the removal proceeding for an individual.
How Does the Removal Process Start?
The removal process generally begins when the person in question is sent a “Notice to Appear.” This is a formal government document that informs the person of information related to their removal case, including:
- Why the person is being summoned to appear in an immigration court
- In what way the person supposedly broke the law or committed a violation
- Consequences of not attending the hearing
Once the actual hearings begin, the person being summoned to appear may be subject to various interviews and other processes. The purpose is to review the evidence which will prove whether or not the person is removable.
The first hearing is referred to as the ”master calendar” hearing. It is necessary for you to arrive in person at your hearing date or else you will be issued an automatic removal. You can bring your attorney with you to this meeting.
If you have a plan to defend against your removal, you will move onto the next step, known as the “merit hearing.” The merit hearing or hearings allow you and your immigration lawyer to present your case. Your removal proceedings attorney can help gather evidence and conduct questions for the merit hearings.
Who Is Subject to Removal Proceedings?
Common causes of removal proceedings include:
- The person entered the U.S. illegally
- The person did not voluntarily leave before their visa expired
- The person has committed a crime
- The person is a threat to public safety in some other way
- The person’s presence in the U.S. was based on fraudulent immigration documents
- The person entered into a fraudulent marriage to a U.S. citizen or permanent resident
Is There Any Relief From Removal?
In some cases, relief from removal may be available to you. There are several methods of relief:
- “Cancellation of removal” may apply. Foreign nationals facing removal proceedings may be able to fight deportation by applying for cancellation of removal. This application can waive certain immigration violations, depending on the circumstances. If applicants successfully secure a cancellation of removal, they are eligible to keep or obtain permanent residency in the U.S.
- Another form of relief from removal is a “suspension of removal.” This is where the removal proceedings are suspended or delayed due to an administrative need, such as if the person is involved in an ongoing court case. While this is not a permanent remedy, it does involve a temporary suspension of the removal process.
- An adjustment of status is an application for aliens located in the U.S. who want to change their status to that of a lawful permanent resident (green card holder). Adjustment of Status can be used as a defense during removal proceedings. When facing deportation, adjustment of status can be done based on marriage or another relationship to a U.S. citizen or permanent resident. The U.S. Citizenship and Immigration Services (USCIS) bureau will review and either approve or deny a petition to adjust status.
- People facing removal proceedings who are unable or unwilling to return to their home country or country of origin due to persecution may be qualified to apply for asylum or refugee status. These conditions are applicable for foreign nationals who can demonstrate that they have faced, or will likely face, persecution on the grounds of race, religion, nationality, political opinion, or membership in a particular social group if they return to their home country. The asylum and refugee application processes are different for people who are in the process of being deported than if they were not facing removal proceedings.
- Convention Against Torture (CAT) is an extremely rare grant of protection. CAT is intended for foreign nationals who fear torture in their home country or country of origin, either by the government or with the acquiescence of the government. Foreign nationals who are legally ineligible for withholding of removal and asylum may find CAT as their only option for remaining in the U.S.
- When adjusting status to permanent residence, it may arise that the alien has committed a crime which would normally render them inadmissible to the United States. It is possible to obtain a waiver. This occurs when the immigration authorities exercise their discretionary authority to waive certain provisions of the Immigration and Nationality Act. These waivers can provide a deportation defense if applicants prove they have:
- been rehabilitated, and
- they are not a threat to national welfare and safety, and
- the criminal activity in question occurred more than 15 years before they applied for entry into the U.S.
- Generally, once a person has been deported, they are barred from re-entering the U.S. for ten years or, possibly, permanently. In fact, illegal entry after deportation can result in criminal prosecution by the U.S. government for improper re-entry, a crime that comes with punishment that includes up to 10 years in prison and/or a large monetary fine. Through voluntary departure, people facing removal proceedings can leave the U.S. of their own volition, rather than being formally deported.
Is Relief From Removal Automatically Granted?
Relief from removal is not granted as an automatic course of options. Usually, the person being summoned for removal proceedings will need to specifically request for relief from removal from the judge or immigration panel in charge of the proceeding.
The earlier in the process that such requests are made, the better chances the applicant will have in obtaining relief. Also, the applicant will need to supply evidence in support of their request for relief. This evidence can include statements and documents showing their eligibility for relief.
Do I Need a Lawyer for Help With the Removal Process?
The removal process can be very complicated and confusing. It is likely the most important immigration process you will ever face, and mistakes could lead to your deportation. You may need to hire a qualified immigration lawyer if you or a loved one of yours needs assistance with the removal process.
Your attorney can inform you of your legal rights throughout the process. A knowledgeable, experienced attorney will be up to date on the current provisions of the laws and regulations applicable to removal, which is essential to a successful defense against the government’s efforts to force you to leave the country.