Removal (Deportation) Defense

After the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA) took effect in 1997, deportation proceedings were replaced by removal proceedings. Removal proceedings are administrative proceedings under United States immigration law that determine whether a person must permanently leave the country. Certain defenses may be available to those who have been placed in removal proceedings. Defendants may either show that they are not removable as charged or they may request relief from removal.

GROUNDS FOR REMOVAL AND INADMISSIBILITY

Certain portions of an applicant’s history may deem them inadmissible to live and work in the United States. These grounds include specific issues regarding:

  • health and a medical examination
  • criminal activity
  • security
  • public charges
  • labor certification and qualifications for certain immigrants
  • illegal entrants and immigration violators
  • documentation requirements
  • ineligibility for citizenship
  • aliens unlawfully present after previous immigration violations
  • and other issues not named in this list.
THE REMOVAL PROCESS

The removal process begins when the government issues an administrative summons called a Notice to Appear. The Notice includes a list of allegations that the government must prove. Removal proceedings are prosecuted by attorneys from the Department of Homeland Security, specifically the United States Immigration and Customs Enforcement. An Immigration Judge reviews the Notice to decide whether the non-citizen may remain in the United States or the non-citizen should be ordered removed.

The initial hearing in front of the judge, called a master calendar hearing, introduces the court to the case and any defenses. At the first master hearing, the respondent must either admit or deny each allegation listed on the Notice to Appear. If the allegations are denied, the government must produce enough evidence to prove their charges. If the government produces sufficient evidence to prove the charges or the respondent admits the charges, removability is established and the Immigration Judge can order the respondent removed. If the respondent is ordered removed, he or she still may be able to apply for relief from removal.

At the master hearing, the judge may schedule another hearing to allow the government to demonstrate its findings. If the government produces sufficient evidence, the judge may schedule an individual hearing (merits hearing) to hear the respondent’s application for relief. Before the individual hearing, both sides submit evidence and arguments to the judge. During the individual hearing, the judge weighs the evidence, arguments, and witness testimonies and ultimately issues a decision to either grant relief from removal or order removal.

Both sides are eligible to appeal the judge’s decision. If the judge has ordered removal, the government generally cannot remove an individual while the appeal is being reviewed by the Board of Immigration Appeals. An appeal must be filed within 30 days of the judge’s decision.

RELIEF FROM REMOVAL

A foreign citizen who is placed in removal or deportation proceedings may apply for relief from removal if the requirements are met. There are several forms of relief, which can include: