Removal Proceedings or Deportation
Because of the variety of agencies, laws and statutes that govern the various facets of immigration, the process of removal and deportation is remarkably complex; for example, anyone facing removal or deportation proceedings will have interactions with Immigration and Customs Enforcement, Department of Homeland Security and potentially federal circuit courts. Therefore, anyone who is actively fighting this process should immediately seek out an experienced representative or advocate who can help them understand how to obtain relief from removal or deportation. While the process can seem overwhelming, there are multiple options that immigrants facing deportation can utilize to halt the proceedings against them.
All removal and deportation proceedings begin with a report filed by Immigration and Customs Enforcement, known as ICE; when they find someone who is potentially deportable, they file a report with the Department of Homeland Security, known as DHS. Based on the report filed by ICE, the DHS typically pursues one of three avenues. The first procedure, and most common, is for the DHS to begin the removal process by filing a Notice to Appear in immigration court. The other procedures used by the DHS are expedited removal or an enforced removal order, which allows the government to detain and remove immigrants without going through immigration court proceedings. Fortunately, these options are predominantly utilized against those who have been arrested at the border or who have already been issued a removal order.
When the DHS files a Notice to Appear, that means the deportation candidate must attend two hearings to defend themselves against removal. The first hearing, known as a master hearing, is the DHS’s opportunity to prove to the judge that the candidate is not a U.S. citizen and has violated American immigration law. If the candidate is an undocumented immigrant, the DHS only has to prove that he or she was not born in the United States. If the judge decides at the conclusion of the master hearing that the candidate is eligible for deportation, he or she can request a second hearing that is known as an individual merits hearing. This hearing gives the deportation candidate the opportunity to explain why they should be allowed to stay in the United States. Some common reasons that people use in their defense include their eligibility for immigration status, amount of time spent in the U.S., or fear of persecution.
After each of these hearings, the immigration judge in charge of the case decides whether or not deportation proceedings should continue. If the candidate wins either of these hearings, then the judge will recommend that the DHS abandon removal proceedings against him or her. Even if the candidate loses both hearings, there are still a few options available to them. The first is appeals: both the deportation candidate and the DHS can appeal the immigration court’s decision
to the Board of Immigration Appeals, known as the BIA. After a decision is made by this organization, appeals can be sent to the Federal Circuit Court of Appeals, then to the U.S. Supreme Court. Once all appeals have been exhausted and the candidate is still eligible for deportation, then the DHS and the immigration court will sign off on a “Final Removal Order” that allows ICE to physically deport the candidate to their home country.
Even though a Final Removal Order sounds like a death knell in terms of the deportation process, all options have still not been exhausted at this point. First, ICE is allowed to detain people for 180 days after their Final Order of Removal has been signed as they assess the logistics of returning the deportation candidate back to his or her home country. Certain circumstances, like a medical condition or supporting U.S. citizen offspring, allow the candidate to apply for a stay of removal so that their removal proceedings can be delayed. Unfortunately, this outcome has become far more infrequent as these petitions have become rarely approved; also, ICE has sought to revoke many stays of removal in an attempt to raise deportation rates.
As mentioned previously, fighting the process of removal and deportation is a complex and multi-tiered process. For anyone actively facing these procedures, the best possible course of action is to seek the advice of someone who has experience and an innate familiarity with deportation proceedings. Call Castel & Hall, LLP. at 617-716-6464 to receive an informed consultation from an experienced immigration lawyer.