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Gateway to the U.S.A.

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Immigration Lawyer Deportation Defense

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Immigration Lawyer Deportation Defense in Florida

Deportation (also called "removal") occurs when the federal government formally removes an alien from the United States for violations of a number of immigration or criminal laws, described in more detail below. Once deported, an alien may lose the right to ever return to the United States, even as a visitor. Removal is a legal proceeding, and an alien who is subject to this procedure has legal rights prior to being removed from the country, including the right to challenge the removal itself on procedural or constitutional grounds. Following is a discussion of the removal process. Contact an experienced immigration lawyer at our office today to discuss deportation defense and how we may be able to prevent deportation. Every deportation defense case is different and that's why we offer a free telephone consultation to discuss the details of your situation.

 

Who can be deported? 


Any alien that is in the United States may be subject to deportation or removal if he or she: 

  • Is an inadmissible alien according to immigration laws in effect      at the time of entry to the U.S. or adjustment of nonimmigrant  status; 
  • Is present in the U.S. in violation of the Immigration and Nationality   Act or any other U.S. law; 
  • Violated nonimmigrant status or a condition of entry into the U.S.; 
  • Terminated a conditional permanent residence; 
  • Encouraged or aided any other alien to enter the U.S. illegally; 
  • Engaged in marriage fraud to gain admission to the U.S.; 
  • Was convicted of certain criminal offenses; 
  • Failed to register or falsified documents relating to entry in to the   U.S.; 
  • Engaged in any activity that endangers public safety or creates a risk   of national security; 
  • or   Engaged in unlawful voting. 


Deportation or Removal Process 


A Notice to Appear (NTA) is issued by the U.S. Immigration and      Customs Enforcement, served to the alien, and filed with the immigration      court. In addition to containing general information about the      immigrant (name, country of origin, etc.), the NTA also states the      reasons for the deportation or removal.   A hearing is scheduled, at    which the immigration judge asks if the alien   is ready to proceed with    the case, or if he or she needs time to secure   an attorney. If the    alien needs time to secure an attorney, a hearing   is scheduled for a    later date.   Once the alien has an attorney, or has elected to  proceed   without one,   the alien will be asked by the immigration  judge to   verify the contents   of the NTA.   If the judge determines  that the   information in the NTA is correct and   that the alien can be  deported,   the alien is given the opportunity to   apply for any form  of relief   from deportation. If the alien is eligible   for a form of  relief and   decides to apply for it, an individual hearing   date is  scheduled. If   the alien is not eligible, deportation will be    ordered.   If an   individual hearing is held, the alien will be given  the   opportunity to   give testimony and have witnesses testify on his  or her   behalf. 


At the conclusion of the hearing, the immigration judge will    either   make an oral decision on the matter, or will release a written      decision at a later date.   If the alien has been ordered deported,  the   alien has 30 days from the   date of the decision to appeal the  decision   to the Board of Immigration   Appeals (BIA). If the BIA  decides against   the alien, the alien has the   option of appealing to  the appropriate   U.S. Court of Appeals. The   immigration service has  the opportunity to   appeal an unfavorable   individual hearing  decision, but may not appeal   an unfavorable decision   by the BIA. An  appellate court decision can be   appealed to the U.S.   Supreme Court  by either the alien or the   immigration service. 


The Removal Process


Within the U.S. Department of Justice, more than 200 Immigration  Judges located in 53 Immigration Courts nationwide conduct proceedings  and decide individual removal cases. Removal proceedings account for  approximately 80 percent of Immigration Judges' caseload. Federal rules  of evidence are inapplicable in Immigration Court; thus, an Immigration  Judge has greater authority to consider most kinds of evidence in  deciding a case. The types of proceedings an Immigration Judge may  preside over are briefly discussed below. 


Removal Hearings - Deportation Defense


Removal hearings are conducted to determine whether certain aliens  are subject to removal from the country. The distinction between  exclusion and deportation proceedings has been eliminated, and aliens  subject to removal from the United States are now all placed in removal  proceedings. Thus, the removal proceeding is now generally the sole  procedure for determining whether an alien is inadmissible, deportable,  or eligible for relief from removal. 


The Department of Homeland Security (DHS), which absorbed the  functions of the Immigration and Naturalization Service (INS), is  responsible for commencing a removal proceeding. If the DHS alleges a  violation of immigration laws, it has the discretion to "serve" the  alien with a charging document, known as a Notice to Appear. This  document orders the individual to appear before an Immigration Judge,  and advises him or her of, among other things: 


Nature of the proceedings against the individual; Individual's  alleged acts that violated the law; Individual's right to an attorney;  and Consequences of failing to appear at scheduled hearings. Removal  proceedings generally require an Immigration Judge to make two findings:  (1) a determination of the alien's removability from the United States,  and (2) whether the alien is eligible for a form of relief from  removal. For more information on the types of relief available to an  alien, please see the Forms of Relief from Removal factsheet. 


Bond Redetermination Hearings for those in Detention


An Immigration Judge conducts a bond redetermination hearing for  aliens who are in DHS detention. The alien makes a request to the  Immigration Judge to lower or eliminate the amount of the bond set by  the DHS. These hearings are generally informal and are not a part of the  removal proceedings. This decision can be appealed (by either the alien  or by DHS) to the Board of Immigration Appeals (BIA). 


Withholding-Only Hearing


An Immigration Judge conducts a withholding-only hearing to  determine whether an alien who has been ordered removed is eligible for  withholding of removal under U.S. law or the U.N. Convention against  Torture (CAT).

 

Delaying Deportation or Removal


"Stay" Proceedings When an alien is detained, has an action pending  before the Board of Immigration Appeals (BIA), and is in "danger" of  being immediately deported or removed, the alien, or the alien's  attorney or representative, may request a stay of deportation/removal  from the BIA.

 

Once the BIA has received a stay request, the BIA is faced with an  emergency situation in which the stay request must be given immediate  attention and priority over other work. 


Conditions that Must Be Met for the BIA to Consider a Request for a  Stay of Deportation/Removal 1. Is the alien in the physical custody of  U.S. Citizenship and Immigration Services (USCIS)? If an alien is  detained by the USCIS and deportation/removal is imminent, the BIA will  consider the stay request promptly. A stay will only be considered once  the alien has actually reported and is in the physical custody of the  USCIS. It is the responsibility of the attorney to call and inform the  BIA when the alien is in the custody of the USCIS. 

2. Is there an action pending before the BIA - does the BIA have  jurisdiction? A motion to reopen or reconsider a prior Board decision,  or an appeal from an Immigration Judge's denial of a motion must have  been filed with the BIA (Clerk's Office Appeals Unit). Generally, there  is an automatic stay when a direct appeal is filed from an Immigration  Judge's order. However, there is no automatic stay when (a) the alien  clearly waived appeal at the hearing, then files an appeal, or (b) when a  direct appeal is taken from an Immigration Judge's order that was  entered in absentia. 


Procedures in Stay Requests - Appeals, Motions & Requests


An appeal or a motion must be properly filed with the Clerk's Office  at the BIA. The BIA will accept filings in person only at the window of  the Office of the Clerk, on the 13th Floor of Building 3 at EOIR's  Skyline Office Complex in Falls Church, VA. This applies to the USCIS as  well as the public. 


A stay request can be submitted to the BIA in writing or can be requested telephonically through a BIA secretary. 


FAX stay requests will be accepted ONLY: If necessary, i.e. because  the alien's scheduled deportation does not allow enough time for the  stay request to be delivered by other means. If there is an underlying  motion pending at the BIA. If the BIA asks that the stay request be sent  by FAX. 

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