The Law Office of Robert J. Maher, P.C.

Removal Proceedings-THE PROCESS & POSSIBLE DEFENSES

When you are in the United States on a visa issued by the United States government, and have committed certain types of offenses, you may lose your immigration status and be deported back to your country of origin. Whether you already have a green card (permanent residency) or a non-immigrant work visa (e.g. H-1B) or a student visa (e.g. F-1), a conviction could mean deportation. Removal proceedings could also mean that you may never be permitted to re-enter the United States after you’ve left the country. Removal proceedings are initiated by the U.S. Immigration and Customs Enforcement (ICE), which are part of the Department of Homeland Security.  

Breaches of American law that can form the basis of removal proceedings typically fall into two categories: deportable offenses (crimes), and violations of immigration laws or regulations.

What are typical deportable offenses (crimes)?

The most common deportable offenses include the following:

  • Aggravated felony convictions (e.g. rape, murder)
  • Controlled substances convictions
  • Firearms convictions
  • Convictions of crimes of moral turpitude (e.g. murder, rape, larceny, fraud, kidnapping, manslaughter, assault with intent to rob or to kill)
  • Domestic violence convictions
  • Espionage
  • Terrorism
  • Sabotage

Regardless of whether the crime you’ve been charged with or convicted of is what you consider a “harmless” misdemeanor or is a serious felony, if you’re convicted of a deportable offense, it will jeopardize your immigration status. Whether it’s possessing a single joint of marijuana for recreation, or more serious crimes such as theft or shoplifting or aggravated assault, so long as you’re convicted of a “deportable offense” in a criminal court, an immigration judge can order your removal from the US. Certainly, the judge’s decision will be based on the merits of the government’s case and the defense(s) your attorney presents on your behalf. But it doesn’t matter if your alleged crime is a first-time misdemeanor or a serious felony; so long as you’ve committed a deportable offense, you can be subject to removal proceedings.

NOTE: The above list of deportable crimes is not exhaustive. The full list of deportable offenses can be found in Section 237(a) of the Immigration and Nationality Act.

Of the various crimes that constitute deportable offenses, that of a “Crime Involving Moral Turpitude” (CMT for short) is the least clearly defined. Which means that it can be interpreted by the prosecutor’s office and criminal judge in the broadest way, such that conviction is more likely.  Generally, these are crimes that “shock the public conscience” and which is inherently base, depraved or vile. Again, with such broad definitions and a failure of the courts to define it with any real legal precision, CMT crimes can sometimes be very difficult to fight.

That said, for you to be deported based on a single CMT, the conviction has to occur within five years from your date of entry into the US and the potential sentence must be for one year or more. It doesn’t matter how long the actual sentence is. What matters is the length of the potential sentence. If however, you are convicted of two or more CMT, where they did not arise out of the same and single scheme of misconduct, you can be removed from the US regardless of how long the sentences are.

If you are charged with a crime in New York City, you’re likely to receive what is called a “Desk Appearance Ticket” (DAT) for the alleged crime you’ve committed. In New York City, a DAT is issued to you when you’ve been arrested but not convicted. It is typically issued for a misdemeanor. It directs you to appear in criminal court for your arraignment i.e. you must appear before a criminal judge. 

If you receive a DAT, you need to quickly engage a criminal lawyer and an immigration lawyer given your foreign national status. Do not be misled by the word “ticket”. This is not like getting a traffic ticket. It’s an order to appear in criminal court to answer the charges by either pleading guilty to them or electing to go to trial with a plea of not guilty. If you opt for the latter, it would be prudent to engage a criminal defense attorney. Whatever you do, you must attend your arraignment and it’s best that you have a criminal attorney with you. Failure to appear in court may result in an arrest warrant issued against you.

Note that removal proceedings are heard in an immigration court, which is separate from the criminal court that hears the criminal case against you.  Removal hearings typically take place after criminal hearings and are civil (administrative) proceedings, not criminal.

What are immigration-related violations?

The following are typical violations of immigration laws or regulations that could result in removal proceedings:

  •  Entered into a fraudulent marriage with a U.S. citizen for the sole purpose of obtaining residency
  • Overstayed i.e. remained in the US beyond the expiration of your visa, whatever the category (green card, tourist visa, work visa, student visa etc.)
  • Entered the U.S. illegally
  • Smuggled other foreign nationals into the U.S.
  • Received public assistance (financial support from the government) in violation of your green card requirement that you be self-supporting, or supported by your green card sponsors
  • Failed to notify the USCIS of your change of address when you move to a new home
  • Failed to maintain your green card status by staying out of the US for longer than permitted (“abandoned status”)

What triggers removal proceedings?

 Removal proceedings are initiated when you receive a Notice to Appear (NTA) in Immigration Court. An NTA can either be mailed to you or served on you personally. An NTA is issued against you when the US authorities believe that you’ve committed a deportable offense, an immigration-related offense, or a national security-related offense. An NTA will have specific details as to which of these form the basis for removal proceedings. The notice will also show a court date for appearing before an immigration judge, and instructions as regards securing counsel.  An NTA can be issued by Immigration & Customs Enforcement (ICE), US Citizenship & Immigration Services(USCIS), or the US Customs and Border Protection (USCBP). These are all agencies under the Department of Homeland Security. An NTA is also known by its administrative reference Form I-862.

If you’re arrested and detained by ICE for immigration-related offenses (e.g. overstaying your visa, entering the country illegally), then it’s usually the case that the NTA is served on you when you are processed and put into detention. If you’re at entry points into the US (e.g. airport or sea port or border crossing), if the USCBP officials have detected that you’ve committed a deportable offense or breaches an immigration law, they can detain you and issue you an NTA. In some cases, the USCIS will send you an NTA when your application for a change or extension of immigration status has been denied and effectively makes you in breach of immigration rules or regulations. Every case is unique and having an immigration lawyer clarify your situation is crucial to your ability to defend removal proceedings.

What’s the removal proceedings process like?

Removal proceedings begin when you are served with an NTA from the US immigration authorities. The NTA will provide details as to why the US government is filing to remove you and deport you back to your country to origin. Note that while the NTA triggers the start of the process, your actual appearance before an immigration judge is dictated by the date of your hearing. At times, it may take up to a year for the authorities to set an appearance (first) court date. You MUST appear in court on your court date; failure to do so has serious consequences, including the immigration judge ordering that you be deported immediately without a hearing.

Rarely does the first hearing result in the judge ordering that you be deported back to your home country. The removal process is layered, and often involves many steps. The following are key hearings that take place during the removal process:

  • Bond hearing – if you are detained by ICE (Immigration & Customs Enforcement), you can get out of detention by paying a bond (a specific amount of money). If you are taken into detention, get your family or a trusted friend to contact an immigration attorney to start the process of applying for a bond hearing. Note: if you have committed any of the above deportable offenses (i.e. crimes), the immigration judge has no power to release you from detention based on you giving a bond.
  • Master Calendar hearing – this is the first hearing before an immigration judge on the merits of your case. Rarely does a judge decide your case at the Master Calendar hearing. This hearing is really to lay the groundwork for how the case will proceed. It typically takes place just after your Bond hearing. Your attorney will, at the Master Calendar hearing, also inform the court as to the relief you intend to seek to defend yourself against removal proceedings.  
  • Merits hearing – this is the hearing where the government’s attorney will present its case against you, and your immigration attorney will argue your defense. The evidence surrounding your case, and the law that applies in your situation, will be presented by both sides to the immigration judge.

You’ve received an NTA. What should you do?

Talk to an immigration attorney as soon as you get your NTA.  IMPORTANT: If you don’t show up at immigration court as directed by your NTA, the immigration judge will enter an immediate order for removal/deportation. The judge can also issue a warrant for your arrest, in order that you be presented before the court. 

If you’re a non-citizen who is charged with a criminal offense, engage a criminal attorney as well as an immigration attorney. Your two lawyers will work together to safeguard your interests and fight for the best outcome for you.

Do you need an immigration attorney?

Removal proceedings are complex, involving many procedures and details that you must comply with.  Given the procedural and legal complexities, your chances of being able to remain in the US are higher if you have proper legal guidance. Even if an immigration judge has determined that you should be removed/deported, you can still appeal the decision (to the Board of Immigration Appeals). That too is a complicated legal process and legal expertise is key to wining your case. That said, the US Constitution doesn’t mandate that a person who is tried in immigration court is entitled to a lawyer as it’s a civil case, not a criminal case. In short, you can represent yourself in any removal proceedings, but so much of it -  including arguing your defense - is legal procedure and law, you are best served by an experienced legal practitioner.

The good news is that there are various ways by which your attorney can help you defend yourself in removal proceedings.  Note, however, that a lot depends on the specific facts of your case. They will determine the strength of your defense.

How should you fight removal proceedings?

The following are typical strategies you and your immigration attorney can employ to contest removal. Not all of them may apply to you; your attorney will advise you on the best strategy to employ in your specific situation. As always, be completely truthful and forthcoming with your attorney – the more we know as immigration lawyers, the better prepared we are to help you.

  • You can apply for what is known as Adjustment of Status. It is the process of obtaining a green card through a family member who is a US citizen. You could also file for Adjustment of Status if you can build a case for seeking asylum or for being a refugee.
  • You can apply for a Criminal Waiver as a permanent resident who has a criminal past.
  • You can apply for a Provisional Waiver if you are married to a U.S. citizen or have U.S. citizen parents. If granted the waiver (called an I-601A waiver), you depart for your country of origin, and then re-apply for a new visa to re-enter the U.S..
  • You can seek Political Asylum, arguing that you are a refugee from your country of origin where your human rights are at risk and you remain in fear of persecution should you return. Note: in a July 2018 memo to the INS, the US Attorney General announced that victims of domestic violence and gang violence would no longer be eligible to apply for asylum on these grounds. Grounds such as persecution because or race, natinoality, religion and political beliefs still stand.
  • You can rely on the Convention Against Torture (CAT) whereby you can argue that should you be returned to your country of origin, you are likely to be tortured by your home country’s government.
  • You can volunteer to depart. Voluntary Departure ensures that the removal proceedings do not stain your immigration record, thereby leaving the door open for fresh applications to return on a new visa.
  • You may seek Prosecutorial Discretion. The prosecution may decide to close your removal case, and limit your stay in the U.S., together with other conditions (e.g. you can work but can’t travel). Prosecutorial discretion is usually exercised in cases where you have no criminal record.
  • Your attorney can negotiate with the prosecution for Deferred Action if you are a young person.  
  • You can apply for EOIR-42B Cancellation of Removal. This is when you are a non-legal alien fulfil the following requirements: (a) you have been physically present in the U.S. for at least 10 years before Immigration Court proceedings began; (b) you are of good moral character and have been so for 10 years; and (c) a U.S. citizen or legal permanent resident child, spouse, or parent will suffer extreme and exceptionally unusual hardship if you’re deported.

There may be other strategies open to you, apart from those listed above. Your immigration attorney should weigh the facts of your situation and advise your accordingly. Some strategies can be applied at the same time, to ensure that you use all available to you. Your lawyer will guide you on this.

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Mr Maher has handled many cases of removal proceedings with much success. He has helped several clients fight deportation from the US. He also works closely with criminal defense law firm Crotty & Saland on cases where clients have been charged with crimes that are deportable offenses.  

If you have received an NTA, or believe that you will be charged with a deportable offense, or believe you have violated immigration laws that may affect your status, call Mr Maher immediately at 212.939.7548.  Mr Maher is available 24/7 to assist you.