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US Immigration
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Posted 12/28/2009 |
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LEGAL NOTES /
By REUBEN SEGURITAN |
What Happens In A Deportation Hearing
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Each year the Department of Homeland Security (DHS) removes or deports
hundreds of thousands of aliens from the U.S. In 2008, deportation totaled 358,883.
There are no figures yet in 2009, but judging from the DHS press release, the
number should be much more.
Not included in the above statistics are the 811,000 foreign nationals who
accepted an offer to return to their home country in 2008 without a removal order.
Deportation or removal is a harsh punishment. It is important that one should
know what happens in the process.
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Removal or deportation proceedings are initiated by the DHS with the service of a
Notice To Appear (NTA) on an individual who violated immigration laws.
The NTA is
filed with one of the 55 immigration courts and it orders the individual to appear before
an immigration judge.
There are currently 55 immigration courts in the country and more than 230
immigration judges. The immigration court schedules a removal hearing upon its receipt
of the NTA.
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Removal proceedings start with a master calendar hearing where the individual is
informed by a judge about the immigration law that he violated.
At the scheduled individual hearing, the DHS is represented by a government
attorney while the individual may at his expense get a lawyer or other authorized
representative.
During the hearing, the individual may admit that he is removable and then apply
for relief such as voluntary departure, asylum, adjustment of status, cancellation of
removal, or other remedies provided by immigration law.
A voluntary departure allows the individual to return to his home country at his
own expense without the stigma of formal removal.
An asylum is granted to an individual who is unable to return to his home country
because of past persecution or well-founded fear of future persecution based upon his
race, religion, nationality, membership in a particular social group, or political opinion.
Adjustment of status as a relief is available to an individual who is the beneficiary
of a petition filed by a family member or an employer and a visa number is immediately
available. |
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Cancellation of removal as a discretionary relief may be availed of by a lawful
permanent resident or a non-permanent resident.
It may be granted to a permanent resident if he has been residing in the U.S for at
least five (5) years as a permanent resident, has continuously resided at least seven (7)
years after his lawful admission and has not been convicted of an aggravated felony.
This relief may be granted to a nonpermanent resident if he has been continuously
present in the U.S. for at least ten (10) years and has been a person of good moral
character and during that time has not been convicted of an offense that would make him
removable and must prove that his removal would result in exceptional and extremely
unusual hardship to his immediate family members who are U.S. citizens or lawful
permanent residents.
The immigration judge may also conduct other hearings during the removal
process such as bond determination, rescission hearing and in absentia hearing.
An individual who does not appear during a scheduled hearing may be ordered
removed in his absence if there is clear, unequivocal and convincing evidence that he is
removable.
After the removal hearing, the judge renders a decision. If he grants a relief from
removal, the individual may remain in the U.S. temporarily or permanently. If the judge
orders his removal, he may appeal. A judge’s decision may be appealed to the Board of
Immigration Appeals by action by either the DHS or the individual. The decision of the
BIA may be appealed by the individual, but not by the DHS to the appropriate federal
circuit Court of Appeals.
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REUBEN S. SEGURITAN
has been practicing law for over 30 years and is included in the Marquis Who’s Who in American Law. A former law editor and professor, he is also the author of a book on immigrant experiences. He has spoken in international and national conventions and has been interviewed on radio and television, including the ABC Nightly News. He has participated in meetings with White House staff and the Immigration Commissioner to discuss immigration reforms. For his community service and advocacy, he has received numerous awards in the U.S. and abroad. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281 |
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