The Nuts and Bolts of Deportation Proceedings

By Robert L. Reeves, Nancy E. Miller & Devin Connolly

There are over 11 million non-U.S. citizens currently residing in the U.S. living in fear of being deported.  These individuals want nothing more than to continue living in the U.S. with their beloved family members.  However, the odds are that sooner or later the U.S. Department of Homeland Security will attempt to deport an alien who has, in some way, violated the immigration law. Violation can include entering without inspection, staying in the U.S. longer than permitted, misrepresenting a material fact in order to obtain an immigration benefit or being convicted of a crime. 

Immigration court proceedings are referred to as “Removal Proceedings.”  Removal proceedings begin when the U.S. Immigration and Customs Enforcement issues a “Notice To Appear” (“NTA”) to an alien.  Once in Immigration Court an attorney from U.S. Immigration & Customs Enforcement (ICE) will attempt to convince the Immigration Judge that the alien (also referred to in court as the “respondent”) should be deported from the U.S.   The government attorney files factual evidence supporting their legal claim that the non-citizen is removable.   There are various ways to respond to the government’s evidence.  The respondent can object to the admission of the evidence by asserting that it does not comply with the rules of evidence.  He can also try to persuade the judge that the documents do not show by clear and convincing evidence that the respondent has violated the relevant section of immigration law.  Additionally, the respondent can argue that the government’s interpretation of the law is incorrect and that, under the correct interpretation, she is not removable. 

Assuming that the immigration judge finds that the government has met its burden of showing that the respondent is removable, the alien is required to show why he should be permitted to stay in the U.S.  This means that the respondent needs to show why he is both statutorily eligible for specific forms of relief and why he should receive that relief in the exercise of the judge’s discretion.  It is the respondent’s burden to prove that he is entitled to the relief he is seeking.   

It is important to realize that an Immigration Judge will not allow a person to remain in the U.S. solely because they are a nice person or have family members in the U.S. or because they have lived in the U.S. since childhood.  Rather, the alien is required to provide the Immigration Judge with a legal reason why they should be granted relief based on the Immigration and Nationality Act.  This legal form of relief must also be accompanied by the submission of sufficient documentary evidence to support their claim.  This evidence must clearly convince the Immigration Judge that the alien satisfies the required elements necessary to be granted this form of relief. 

Preparation and presentation of both documentary and verbal evidence is as important as legal eligibility. Knowing the required elements for relief and presenting the evidence in a manner that emphasizes the positive aspects and minimizes negative aspects of the alien’s case is essential to a successful outcome. 

If the alien is not eligible to remain in the United States, the respondent must decide whether to accept Voluntary Departure.  Voluntary Departure allows the alien to leave the U.S. voluntarily within a certain period of time without being removed.  The alien may be granted a maximum of 120 days to depart the U.S. if they request Voluntary Departure at the beginning of their removal proceedings, and a maximum of 60 days if they request it later in the proceedings.

 However, many aliens do not realize the negative consequences of failing to timely depart the United States.  The grant of Voluntary Departure is automatically converted into an order of removal upon the alien’s failure to timely depart.   At that point, the alien has a 10 year bar from most forms of relief in the U.S. both because of the violation of voluntary departure and the resulting order of removal. 

Leaving the United States under voluntary departure does not prevent the alien from incurring the 10 year bar for unlawful presence.  So, even if the alien leaves the United States on time and avoids the 10 year bar for being removed, she will still be barred from returning for 10 years as a result of having lived here for a year or more illegally.  If she can show that her USC or LPR spouse or parents will suffer extreme hardship in her absence, she may be granted a waiver of that 10 year bar.

 Fighting deportation in immigration court is a scary and stressful endeavor.  So much is riding on a successful outcome.  For this reason, it is always advisable to retain the services of an experienced and knowledgeable immigration attorney.  The risk of deportation is just too high to settle for anything less than the very best.