The deportation process in the United States can be daunting and complex. Understanding how it works and knowing your legal defenses can make a significant difference. This blog aims to provide a comprehensive overview of deportation and removal proceedings, explaining the process, common reasons for deportation, and the potential defenses available to those facing removal from the U.S.
The Deportation Process
1. Initiation of Proceedings:
Deportation proceedings begin when the Department of Homeland Security (DHS) issues a Notice to Appear (NTA). The NTA outlines the reasons why the individual is believed to be removable from the U.S. This document is served to the individual and filed with the immigration court.
2. Master Calendar Hearing:
The first hearing in deportation proceedings is called the Master Calendar Hearing. During this hearing, the immigration judge will explain the charges against the individual, their rights, and the options available to them. The individual can respond to the charges, admit or deny them, and indicate their intention to contest the removal or seek relief.
3. Merits Hearing:
If the individual contests the removal or seeks relief, the case will proceed to a Merits Hearing. This is where the individual can present evidence, call witnesses, and argue their case before the immigration judge. The government will also present its case for removal.
4. Decision:
After hearing both sides, the immigration judge will make a decision. If the judge orders removal, the individual has the right to appeal the decision to the Board of Immigration Appeals (BIA) within 30 days. If the BIA upholds the removal order, the individual may seek further review by the federal courts.
5. Removal:
If all appeals are exhausted and the removal order is upheld, DHS will arrange for the individual’s deportation. The individual may be detained until they are removed from the U.S.
Legal Defenses Against Removal
Facing deportation can be terrifying, but there are several legal defenses and forms of relief that may help an individual remain in the U.S. Here are some common defenses:
1. Cancellation of Removal:
For non-permanent residents, cancellation of removal may be granted if the individual has been physically present in the U.S. for at least 10 years, has demonstrated good moral character, and can show that their removal would cause exceptional and extremely unusual hardship to a U.S. citizen or lawful permanent resident spouse, parent, or child.
For lawful permanent residents, they must have been a resident for at least five years, have lived in the U.S. continuously for seven years after being admitted, and have not been convicted of an aggravated felony.
2. Asylum:
Individuals fearing persecution in their home country due to race, religion, nationality, membership in a particular social group, or political opinion may apply for asylum. If granted, asylum allows individuals to remain in the U.S. and eventually apply for permanent residency.
3. Withholding of Removal:
Similar to asylum, withholding of removal is for individuals who fear persecution. The standard of proof is higher, but if granted, it prevents the individual from being deported to the country where they face persecution.
4. Convention Against Torture (CAT):
Protection under CAT is available for individuals who can prove they are more likely than not to be tortured if removed to their home country. This protection prevents deportation but does not lead to permanent residency.
5. Adjustment of Status:
If the individual is eligible to become a lawful permanent resident (e.g., through family sponsorship), they may apply for adjustment of status to halt the removal process.
6. Voluntary Departure:
In some cases, individuals may request voluntary departure, allowing them to leave the U.S. at their own expense within a specific timeframe, avoiding a formal removal order on their record.
7. Legal and Procedural Defenses:
Challenging the validity of the NTA, the jurisdiction of the court, or arguing procedural errors can sometimes result in the termination of removal proceedings.
Conclusion
Navigating deportation and removal proceedings requires a thorough understanding of U.S. immigration law and the defenses available. At Mantra Law Office, we are committed to providing expert legal guidance and representation to individuals facing deportation. If you or a loved one is dealing with removal proceedings, contact us to discuss your case and explore your legal options.
