The Department of Homeland Security (DHS) most commonly targets its enforcement efforts to prioritize criminals and threats to public safety, border security, and national security. However, removal (or deportation) of foreign nationals continues; in fact, the DHS removed or returned 185,884 foreign nationals in FY2020.
Understanding what to expect if arrested by DHS and placed in removal proceedings is vital—in particular, know that an arrest by DHS does not automatically lead to an order of removal. Many foreign nationals have more than one form of relief available to them to prevent their removal. An immigration attorney can advise someone arrested by DHS, assisting in their preparation to challenge their removal proceedings.
While this article is intended to provide a general overview of removal proceedings, it is not intended to serve as legal advice on its own. We strongly encourage anyone undergoing removal proceedings to secure the assistance of an immigration attorney as soon as possible.
One of the first things a non-citizen should do after being detained for deportation is to deny the grounds for removal under the Immigration and Nationality Act (INA) Section 237. Even if an immigrant is removable, the Department of Homeland Security may have charged this person as removable on improper grounds; this serves as one potential option an attorney could use to fight the removal.
If denying the federal government’s authority to institute removal proceedings is unsuccessful, other defenses are available. Immigration judges often bear the primary responsibility to inform the defendant of the methods of achieving relief. However, while the immigration judge may understand the types of relief available, without an understanding of the defendant’s background, the judge may not be able to recommend the relief options that are most suitable for an individual’s case. In such case, an immigration lawyer could help someone in removal proceedings prepare a defense before the deportation process begins based on the specifics of their situation.
If the defendant has a close relative who is a U.S. citizen or lawful permanent resident, adjustment of status may be a viable option. Typically, to adjust status, the individual must have entered the U.S. legally, but there are several exceptions to the rule. The process of adjusting status requires a series of petitions that should be comprehensively and strategically completed; this task is commonly left to an individual’s immigration attorney.
Individuals facing deportation can establish their qualifications for status as a refugee or asylee. Asylum status applies to individuals forced to flee their home country due to fear of persecution based on religion, race, political affiliation, or other discriminatory criteria. Similarly, refugees must be present outside the United States and forced to flee their country due to persecution or a humanitarian crisis.
Asylees and refugees are able to remain in the United States indefinitely. Withholding of removal and protections stemming from the Convention Against Torture are also viable options if applicable. Additionally, women who are survivors of abuse could seek relief under the Violence Against Women Act.
If the defendant was present in the United States for ten consecutive years preceding this action, cancellation of removal is one possible available defense. If the defendant can prove that removal would cause undue hardship to a close relative, the court may grant relief.
A foreign national living in the U.S., including a legal permanent resident, is vulnerable to being placed in removal proceedings for being inadmissible or deportable as defined by the Immigration and Nationality Act. Among the most common reasons for being arrested by the DHS are being convicted of a crime, applying for immigration benefits that are denied, violating one’s status, or requesting admission to the U.S. without valid documents.
Removal proceedings are initiated with a charging document called a Notice to Appear. Among other information, the Notice to Appear contains the formal charges, the time and place of the hearing, and the consequences for failing to appear. The Notice to Appear is only required to give a 10-day notice of the initial hearing. However, since proceedings begin when the notice is filed in court and not when it is served, a foreign national who receives a Notice to Appear may find that he or she has fewer than 10 days to prepare.
A foreign national may be kept in custody (if subject to mandatory detention), released under a bond of at least $1,500, or released on conditional parole into the community. Bond hearings occur before the removal hearing and are usually scheduled within days of the arrest, providing little time to prepare and present documentary evidence to the immigration judge that bond should be granted. Reasons for a judge to agree to bond can include proof of the foreign national’s health issues, having family members who are U.S. citizens, hardships to those family members, etc. The bond hearing is separate from the individual’s removal proceedings, and its purpose is exclusively to determine whether the foreign national should be held in custody or released while removal proceedings are ongoing.
Removal hearings generally involve two hearings, the first of which is usually scheduled within a couple weeks of an arrest (or a few months in some cases). A Master Calendar Hearing provides the foreign national the opportunity to answer the charges against him or her and to file his or her application(s) for relief from removal. It is at this hearing that the immigration judge will set a trial date for the second hearing to consider the merits of the application(s) for relief.
The second hearing, also known as the Individual Hearing, is typically scheduled many months after the Master Calendar Hearing (except in cases of mandatory detention, when it is scheduled sooner). The immigration judge will consider the evidence, which may include challenges to the charges on the Notice to Appear or a request for relief from removal. The judge will make a finding on inadmissibility or removability and decide whether to grant any relief sought. Both the foreign national and/or the DHS may appeal the immigration judge’s order to the Board of Immigration Appeals within 30 days of the decision.
Removal proceedings can be stressful and intimidating. They are also unforgiving if one does not understand the procedures and deadlines, given that even a minor mistake or oversight could result in removal from the United States. It is for these reasons that foreign nationals or family members of foreign nationals undergoing removal proceedings are strongly encouraged to seek a deportation lawyer as soon as they are arrested by DHS or receive a Notice to Appear.