Removal Proceedings (Immigration Court) and Bond
At Shestopalko Law we understand how crucial it is to receive legal assistance when you are in removal proceedings or detained during removal proceedings. Contact us so we can help you with every step of your case.
A removal proceeding (deportation) is the legal process in which an alien is formally removed from the United States for violating the United States immigration laws. The removal proceedings are held at immigration court before an Immigration Judge. Removal proceedings begin when the government alleges that an individual does not have valid immigration status or that an individual has done something to end otherwise valid immigration status. The government initiates removal proceedings by usually issuing a document called a Notice To Appear.
Aliens who are candidates (may be subject) to deportation (removal proceedings):
- Aliens who entered the United States illegally
- Aliens who overstayed his or her visa and failed to timely leave the United States
- Aliens whose affirmative asylum application were denied by Untied States Citizenship and Immigration services and who were referred to Immigration Court
- Aliens who were unlawfully employed while not possessing an authorization to be employed in the United States
- Aliens who failed to maintain his or her immigration status
- Aliens on student visas who either failed to start his or her course of study or who withdrew from the course of study before the program’s completion
- Aliens who committed certain crimes including aggravated felonies, domestic violence, drug-related crimes and crimes involving moral turpitude
- Aliens who failed to report change of address to the United States Immigration and Citizenship Services within ten days of moving to a new residence
- Aliens engaged in “Marriage fraud”
- Aliens who produced false documents for entry
- Aliens who committed immigration fraud by providing false information, providing fraudulent documentation or omitting certain facts to an Immigration Office
- Aliens who presented false documents proving United States Citizenship
The government must prove that the alien is removable (can be deported) from the United States for a violation of immigration law.
Removal proceedings begin with an initial hearing, known as a master calendar hearing. At the master calendar hearing, the individual facing potential deportation, must admit or deny the charges brought against him or her. The individual also has an opportunity to identify any defenses to deportation. He or she may file application(s) for relief from removal such as an application for asylum, waiver, cancellation of removal, or adjustment of status.
The next hearing, known as the individual calendar hearing, is usually scheduled during the master calendar hearing. The individual calendar hearing is generally very brief, and the alien may supplement the motions or applications he or she filed during the master calendar hearing with additional evidence and documentation.
The merits hearing is a longer, more involved hearing during which an Immigration Judge will hear testimony and review evidence and legal arguments in order to make a decision on the motions or applications before the court.
*If the individual who received a Notice to Appear does not appear for a hearing, the Immigration Judge will most likely grant the government’s request for removal.
Often the first step in the removal process is for the alien to be “detained” – placed in custody with Immigration and Customs Enforcement. There are many Immigration and Customs Enforcement facilities in the United States. The alien is usually detained at the facility closest to where he or she was taken into custody. The government will typically detain an immigrant because the government believes either that he or she is a “flight risk” or that he or she poses a public safety threat. There are many reasons why an alien can be detained. Some of the most common reasons are:
- Alien committed a crime
- Alien missed prior immigration hearing
- Alien arrived at the border without a visa prior to applying for asylum
- Alien was previously ordered removed
An alien in Immigration Detention may be eligible for bond – able to be released from government custody while the removal case is pending at immigration court. Removal proceedings often take many years, so if bond is available it should be pursued.
Bond is money that a relative, friend or bond company posts to the government to allow a person in immigration detention to be released from custody while going through removal proceedings. The bond is designed to serve as a guarantee that the individual facing potential removal will appear in immigration court.
The minimum bond is usually $1500.00. The maximum can be many thousands of dollars. If the government does not offer a bond, or if the amount is very high, an Immigration Judge may set a bond or lower the bond amount. The Immigration Judge weighs factors such as:
- Alien’s ties to the community
- Alien’s family ties
- Alien’s employment in the United States
- The reasons the alien is in removal proceedings
- Alien’s family ability to pay
- Whether the alien has a likely chance of winning the removal case at immigration court
- Any potential danger the alien poses to the community
*Certain aliens are subject to mandatory detention and are not eligible for a bond. An alien may challenge mandatory detention if he or she believes it was imposed in error by requesting a hearing before an immigration judge.
Relief From Removal
Cancellation of Removal 42A: Cancellation of Removal (for lawful permanent residents) enables green card holders to avoid deportation and remain in the United States.
To qualify for Cancellation of Removal 42A the alien needs to demonstrate:
- That he or she has been a lawful permanent resident (green card holder) for at least 5 years
- That he or she continually resided in the United States for at least 7 years
- That he or she has NOT been convicted for an aggravated felony
- That he or she has not been granted cancellation of removal or section 212(c) relief in the past
- That the Immigration Judge should grant the alien’s application “as a matter of discretion”
Cancellation of Removal 42B: Cancellation of removal for non-lawful permanent residents (aliens who are illegally in the United States) is a defense to deportation, and a way to get a green card for aliens in removal (deportation) proceedings.
To qualify for Cancellation of Removal 42B the alien needs to demonstrate:
- That he or she has been physically present in the United States for 10 years or more
- That he or she has been a person of “good moral character” for at least 10 years
- That he or she does not have any disqualifying criminal convictions
- That the alien has a United States citizen or Lawful Permanent (green card holder) spouse, parent, and/or child under 21 who would suffer “exceptional and extremely unusual hardship” if the alien is deported
There are numerous reasons why an alien may be subject to removal from the United States. Aliens may file waivers asking the Immigration Judge to waive the reason why he or she ended up in removal (deportation) proceedings. Please take a look at our Waiver’s section for more information on waivers.
A deportable (removable) alien who is the child, parent, spouse or widow of a United States citizen may be eligible to apply for lawful permanent resident status (get a green card) at Immigration Court. Please take a look at our Adjustment of Status (green card) section for more information on adjustment of status.
Those facing deportation (removal) who suffered persecution or fear future persecution in his or her home country if he or she returns may be eligible for asylum as a defense to removal. Generally asylum seekers must prove that:
- He or she either suffered or may suffer persecution – a threat to their life or freedom
- The persecution is because of his or her race, religion, nationality, political opinion, or membership in a particular social groups
- The persecution must be from the government or from organizations or individuals the government is either unwilling or unable to control
Please take a look at our asylum page for more information on eligibility for asylum.
If an alien is prohibited from receiving asylum he or she may apply for Withholding of Removal. Withholding of Removal prohibits the United States government from returning an alien to his or her home country if his or her life or freedom would be threatened due to his or her religion, race, nationality, political opinion, or membership in a particular social group. The benefits of withholding are worst than the benefits granted by asylum. Withholding applicants are not eligible to become legal permanent residents (get a green card) and withholding status can be revoked by the United States government making the alien removable (deportable) again. Withholding is also harder to prove then asylum because the alien has to demonstrate that he or she is “more likely than not” going to be persecuted if returned to his or her home country.
Common reasons which would disqualify an alien from receiving asylum:
- Conviction for an aggravated felony in United States or abroad
- Missing the one-year filing deadline for asylum
United Nations prohibits governments from torturing their citizens and prohibits governments from deporting individuals to countries where the person would subject to torture. Protection Under the Convention Against Torture is used as a last resort for individuals who are ineligible for asylum or withholding of removal.
To qualify for Protection under the Convention Against Torture the alien needs to demonstrated that it is “more likely than not” that he or she will be tortured if he or she returns to his or her home country. The alien must also prove that this torture will be carried out by his or her government or by someone acting with the acquiescence (consent or acceptance) of the government.
Torture is defined as: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for the purpose of obtaining information or a confession, punishing them for an act they or a third person had committed, or intimidating or coercing them or a third person, or for any reason based on discrimination of any kind”
Unlike asylum and withholding, applicants under Convention Against Torture do need to demonstrate that he or she would be tortured on account of a particular membership in a group, belief or other immutable characteristic.
Aliens facing deportation may challenge their removal (reasons why he or she is in removal proceedings) through motions to terminate and motions to suppress. Motions allows alien to demonstrate mistakes in the government’s documentation or handling of the case:
- Motion to Terminate asks the Immigration Court to dismiss a case because Immigration Court lacks jurisdiction over the proceeding or the government’s charges are wrong. Motion to terminate may be filed as soon as the government files a “Notice to Appear” initiating removal proceeding with the immigration court.
- Motion to Suppress can be filed during removal proceedings to ask the Immigration Judge to exclude evidence (documents) obtained by immigration officials in violation of the United States Constitution and other federal law. If a motion to suppress is granted and the government is prevented from using the evidence, government may be unable to prove its case and therefore the government will be forced to terminate the removal (deportation) proceedings.
If there is no other relief from removal (deportation), most aliens should apply for voluntary departure from the United States. A grant of voluntary departure avoids the legal consequences of an Immigration Judge’s order of removal which bars the alien from entering the United States for a period from five to ten years.
To qualify for voluntary departure the alien needs to demonstrate that:
- He or she does not have any aggravated felonies
- He or she has the financial means (money) to pay for his or her departure from the United States
- He or she agrees to depart the United States within a period granted by the Immigration Judge
- He or she had good moral character during the previous five year period
Challenging Immigration Judge’s Decision
Review of an Immigration Judge’s decision may be accomplished by filing an appeal with the Board of Immigration Appeals. There is a strict time limit when an appeal can be filed. At Shestopalko Law we will examine, investigate and research your individual case and put forth the proper arguments in an effort to win your case. Contact Shestopalko Law for your individualized help.
A motion to reopen is used to reopen removal proceedings after a final decision was rendered by the Immigration Court. There may now be new material evidence that was not available previously and could not have been discovered or submitted at the prior hearing. In addition, there may be changed conditions related to the law or facts that may now make the individual eligible for relief. There are strict time and numerical limitations for filing motions to reopen. Contact Shestopalko Law for your individualized help.
Motions to reconsider are filed in order to correct an error of law or re-examine the facts of a case. Motions to reconsider are usually based on legal issues. There is a time and numerical limitation for filing these motions. Contact Shestopalko Law for your individualized help.
In order to seek review in the Federal Court of Appeals (Federal Circuit Court), there must be a final order of removal (deportation). A petition for review with the Court of Appeals must be filed within 30 days of the final administrative decision (usually decision from Board of Immigration Appeals). In addition, there is no automatic stay of removal (deportation) based on having timely filed petition for review to the Court of Appeals. It is imperative that a lawyer seeks a stay of removal from the Court to ensure that the individual is not physically removed from the United States while the federal case is pending. Contact Shestopalko Law for your individualized help.
Here is where we can help!
For more specific help with your individual case, call Shestopalko Law today at (585) 506-7356, email andriy@shestopalkolaw.com or fill out our contact form.
Disclaimer: This article discusses general legal issues, but it does not constitute legal advice. No one should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction. Shestopalko Law expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.