When an individual is determined to be inadmissible or removable from
the U.S. a waiver or an application for relief from removal
may be available to allow him to enter or remain in the U.S. Our
attorneys can determine eligibility for a waiver and assist in the
preparation of the application.
Additionally, we represent
individuals that have been placed in removal or deportation
proceedings, including those who are in immigration detention
facilities.
Our attorneys maintain an active court docket before
the Executive Office for Immigration Review and are experienced in
assisting clients seeking relief from removal through cancellation of
removal, asylum, withholding of removal, and relief under the UN's
Convention Against Torture (CAT).
We have successfully appealed
cases to the Board of Immigration Appeals and the federal courts.
REMOVAL AND DEPORTATION
Removal and/or deportation are processes by which the Immigration
and Customs Enforcement (ICE) of the U.S. Department of
Justice/Department of Homeland Security (DHS) attempt to deport/remove
non-citizens from the United States.
What are the Basic Requirements of Removal Proceedings?
There are certain requirements to removal proceedings that serve as
guarantees to the non-U.S. citizen that he or she will be treated as
fairly as the process allows. The non-U.S. citizen must be given proper
notice and may choose to be represented by an attorney. The non-U.S.
citizen must be given the opportunity to present evidence on his or her
behalf and examine the evidence against him or her. The decision to
remove/deport or not to remove/deport the non-U.S. citizen must be
based on "reasonable, substantial, and probative evidence."
Why Would a Person Be Subject to Removal?
A person may face removal proceedings for a number of reasons.
Non-citizens who
1) have entered the U.S. without authorization;
2) have overstayed their visas;
3) have violated terms of their visas; or
4) have been convicted of certain crimes which may be subject to removal proceedings.
A non-U.S. citizen, including a lawful permanent resident (LPR), may
face removal proceedings because they have committed a certain crime.
The INS usually defines these classes of crimes as aggravated felonies;
crimes of moral turpitude; crimes of violence; and crimes involving the
sale and/or possession of illegal drugs.
How is a Person Placed in Removal Proceedings?
Removal proceedings begin with the service of the Notice to Appear
(NTA). The NTA is basically the official charging document of the INS
that places a non-U.S. citizen in removal proceedings. The NTA contains
a general statement of the allegations and charges against the non-U.S.
citizen, a description of the activity that is allegedly illegal, and a
list of the statutory provisions alleged to be violated. The NTA also
lists the time and place the non-U.S. citizen is required to appear
before the Immigration Judge.
Once you receive NTA you should promptly contact an attorney to
assist you. You will only be given a certain amount of time before you
must appear before the Immigration Judge.
The Removal Hearings
Bond
When a non-U.S. citizen is taken into custody, BICE does have the
option to release the non-U.S. citizen. If ICE does not release the
non-U.S. citizen on bond, the non-U.S. citizen may request a Bond
Hearing before an Immigration Judge. At the Bond Hearing, the non-U.S.
citizen must show that they are not a danger to the community and that
they are not a flight risk.
The non-U.S. citizen must also demonstrate to the court that they will attend all of their future hearings.
Master Calendar
The Master Calendar Hearing is generally the non-U.S. citizen's first
appearance in Immigration Court. The Master Calendar is a preliminary
hearing to review the charges in the NTA before an Immigration Judge.
The Immigration Judge will explain the non-U.S. citizen's rights (e.g.,
the non-U.S. citizen's right to an attorney). If the non-U.S. citizen
feels he or she is not ready to proceed at the Master Calendar Hearing,
for example, if the non-U.S. citizen needs some time to hire an
attorney, the non-U.S. citizen must ask the judge for a continuance
with "good cause"; most Immigration Judges will allow this continuance.
If the non-U.S. citizen is ready to proceed at this Hearing, with or
without an attorney, the judge will ask if the non-U.S. citizen agrees
or denies the charges as alleged by the INS in the NTA. If the non-U.S.
citizen does not agree with the charges, the non-U.S. citizen can and
should deny the charges and ask the government to prove its case.
The Immigration Judge will determine if the non-U.S. citizen is
eligible for any form(s) of relief, and set a date for the Individual
Merits Hearing.
Individual Merits
The Individual Merits Hearing is when the government must prove the
charges alleged in the NTA. The non-U.S. citizen also is able to
present his or her case to the Immigration Judge with witnesses and
persuade the Immigration Judge to use his or her discretion and allow
the non-U.S. citizen to remain in the United States (if such relief
exists).
At the conclusion of the removal proceedings, the Immigration Judge
will determine if the non-U.S. citizen should or should not be removed
from the U.S.
The Consequences of Removal
If the Immigration Judge orders "removal" in the non-U.S. citizen's
case, the non-U.S. citizen loses their privilege to remain in the
United States. If this is the non-U.S. citizen's first order of
removal, the non-U.S. citizen cannot legally return to the United
States for at least ten years or more depending on the specific case.
If the non-U.S. citizen was convicted of an aggravated felony, he or
she may never be able to return to the U.S.
Does Relief Exist?
Relief from removal/deportation may exist to certain non-U.S. citizens.
An non-U.S. citizen's eligibility for relief depends on many factors,
and is determined on a case-by-case basis, e.g., the length of time the
non-U.S. citizen has resided in the United States.
If after looking over the charges on the NTA, we can determine that the non-U.S. citizen is eligible for relief, CALEHR AND ASSOCIATES will prepare the non-U.S. citizen's application for relief and present this to the Immigration Court on their behalf. Examples of relief include: Cancellation of Removal for Lawful Permanent Residents/Non-Lawful Permanent Residents; Adjustment of Status; and/or Voluntary Departure.
Refugees" and Asylum Under U.S. Law
"Asylum" is a type of protection that enables individuals who are in
the U.S. to remain here under certain conditions and circumstances.
U.S. law states that any alien who arrives in or is present in the U.S.
may apply for asylum.
"Refugee" Status
In order to obtain asylum, the alien must be a "refugee" as defined by
federal law and must not be barred from obtaining asylum under
applicable laws and regulations. Federal law defines refugees as
persons outside their home country or country of residence, who are
unable or unwilling to return because of persecution "or a well-founded
fear of persecution" on account of race, religion, nationality,
membership in a particular social group, or political opinion.
Circumstances Under Which Asylum May be Prohibited
There may be no authority for granting asylum under the following circumstances:
• The U.S. Attorney General determines that the alien
can be sent to a third country, where the alien's life or freedom will
not be threatened and where asylum or equivalent protection may be
obtained, unless it is in the public interest to grant asylum in the
U.S.
• The alien fails to document "by clear and
convincing evidence" that the application for asylum was filed within
one year from the date of arrival in the U.S., unless certain
exceptions to this deadline apply.
• The alien has previously applied for and been
denied asylum, unless the alien can demonstrate changed circumstances
that materially affect asylum eligibility.
A grant of asylum is "discretionary." Thus, even if a showing of
refugee status is made, the U.S. Attorney General does not have to
grant asylum. The law further provides that courts generally do not
have jurisdiction to review the determination of the U.S. Attorney
General on asylum.
Exceptions to the Grant of Asylum
The Attorney General may not grant asylum, even where the alien is otherwise qualified, if the alien:
• Ordered, incited, assisted, or otherwise
participated in persecution of any persons on account of race,
religion, nationality, membership in a particular social group or
political opinion;
• Has been convicted of a particularly serious crime
(such as certain aggravated felonies) and constitutes a danger to the
community;
• Committed a serious, nonpolitical crime outside the U.S. prior to arrival;
• May be a danger to the security of the U.S.
• Has been involved with terrorist organizations or activity; or
• Was firmly settled in another country prior to
arriving in the U.S., other than the country where there was
persecution or a credible fear of persecution.
Rights and Limitations of Asylum Status
A grant of asylum in the U.S. is usually for an indefinite period;
however, asylum status does not give the asylee the right to
permanently remain in the U.S. Changed circumstances, such as
commission of an aggravated felony by the asylee or changed
circumstances in the home country, can result in termination of the
status. Asylum status gives the asylee certain benefits, including:
• The authorization to work in the U.S. while enjoying asylum status.
• Entitlement to "derivative" asylum status for a
spouse and unmarried children 21 years of age at the time the alien
applied for asylum.
• Eligibility to apply for permanent resident status after one year.
