As most of my readers are aware, the INS is currently putting more people indeportation proceedings than ever before. Every week I see many, many people with two things in common: 1) they are all in deportation proceedings, and 2) they have all been seriously misinformed. Whether they have consulted a “friend” or an inexperienced attorney prior to coming to my office, these people are needlessly worried due to the false impressions they have about their deportation case and what options are available to them. Usually, the person comes into my office with a look on his face like his Doctor has just told him he has only weeks to live. When I ask the person what they are so worried about, they usually say something like “So and so attorney told me I wasn’t eligible for a waiver,” or “My friend said I will have to leave the country.”
The first thing I explain to all these people is that there is no reason to panic. After I explain deportation procedure, and tell them what rights and remedies are available to them, the person invariably settles down and appears more relaxed. The first thing to remember if you are scheduled to appear before an immigration judge is not to panic! There is no reason to expend nervous energy and besides it doesn’t do any good. You will have plenty of time to figure out what are your options. If you have not found a lawyer before your first appearance, go to court yourself and ask the judge for time to find an attorney. Immigration Judges routinely grant an individual time to find an attorney if they have been unable to retain one prior to the hearing.
Next, you need to know that you have rights, even in deportation proceedings. The INS will not arrest you, and will not put you in detention. You cannot be “deported,” that is, physically removed from the United States, until the Immigration Judge determines that you are clearly deportable, and no relief from deportation is available to you. Moreover, only in extremely rare cases is no relief available. Even if there is no way for you, currently, to stay in the United States, you can always request Voluntary Departure and agree to leave the United States voluntarily. At all costs, avoid and order of deportation! If deported, you will not be able to legally return to the United States for five years – maybe never!
Ordinarily, the grounds of deportability in the OSC are true and unavoidable. For instance, most people are alleged to have “remained in the U.S. for a longer time than permitted” or “entered the United States without inspection.” These are usually admitted, and the charge of deportability is conceded. So, what do you do once you have conceded deportability? You apply for relief from deportation.
First, as I have already stated, the simple privilege of voluntary departure is available to a deportable alien. This allows a person to avoid the harsh consequences of deportation, i.e. the five year bar from benefits. Voluntary departure is available if you have the money to pay for your own transportation form the United States, are willing to leave voluntarily by a specific date, and have a clean record over the past five years.
An individual may be permitted between 6 months and one year to depart the United States if that is the only relief requested. Therefore, voluntary departure may be the best option for a person who has an alternate means of returning to the United States legally in the near future.
Perhaps the most common situation I am currently seeing is people being put in deportation after filing for asylum with the INS. However, many asylum applicants do no know that they can renew their asylum application in front of the immigration judge. In addition, they may apply for other kinds of relief. For instance, an asylum applicant who has been in the United States for more than seven years may concurrently file for asylum and suspension of deportation. Everyone in deportation proceedings should always apply for voluntary departure “in the alternative,” to any other relief they are seeking. If this is done, the individual will almost always avoid deportation even if the suspension or asylum application is not granted. If the individual disagrees with the Immigration Judge’s decision on the suspension or asylum claim, the period of voluntary departure will not start to run until all appeals have been decided.
Other deportation cases include the people who petitioned for another family member or made an Application for Naturalization which was denied, because the individual misrepresented the fact that he was married when he entered the United States, in order to keep his “single” status, and gain entry into the United States as a permanent resident. There is a waiver provision available to people in this circumstance which, if granted, allows the person to remain in the United States as a permanent resident.
Since the waiver dates back to the original date of entry, the individual will be able to apply for naturalization five years from the date they originally received their permanent resident status.
Another situation I often see is where an individual has obtained a “conditional resident” green card based on their marriage to a U.S. citizen or Permanent Resident, but the marriage has broken down before the condition was removed. This creates a problem because the husband and wife must both petition for removal of the condition. Under these circumstances, the individual must file a request for a waiver of the joint petition to remove condition requirement with the INS. Should the INS not grant that waiver, an individual will be placed in deportation proceedings. However, just as with asylum applicants, a person seeking a waiver of the joint petition requirement should also request a waiver before the Immigration Judge, in addition to any other relief that may be available, such as suspension of deportation and voluntary departure. Of course, if the waiver is not granted, the decision may be appealed.
There are certainly many more situations that may place an individual in deportation proceedings with different forms of relief available to them. This article only addresses a few of the most common situations I have seen recently. Of course, if you are put in deportation proceedings, regardless of the reason, the first thing you should always do is seek a competent and experienced trial lawyer. How do you know who is experienced and competent? The answer is simple: ASK.
When you talk to a lawyer for the first time, ask him or her if they have tried a case like yours before, and whether the case was successful. Ask the lawyer if he himself will represent you, or will you be surprised to find some unknown, newly admitted attorney calling your name on the day of your hearing. When you are paying a lawyer your hard earned money to represent you, you are entitled to ask these simple questions, and to receive satisfactory answers. “I’ll take care of it” and “don’t worry” are not satisfactory answers when your family’s future is on the line. Make your representative prove that he has the necessary skill and experience to succeed with your case. If he cannot answer your questions, he is not the lawyer you want.
When you are put in deportation proceedings, you must immediately ascertain what your rights are, what options you have and how far you want to take your case. Only an experienced immigration trial lawyer can help you with this. If you wait too long before getting advice from an experienced attorney who knows what he or she is talking about, the only option you may have left is whether your plane ride home will be on Philippine Airlines or another carrier.