Removal Defense

Removal proceedings are the process which the government uses to remove an individual from the United States. These proceedings are usually initiated by the issuance of a Notice to Appear. However, mere issuance of the Notice to Appear is not enough, and the government has to file the Notice with the immigration court with jurisdiction over the individual, for proceedings to commence. The jurisdiction is determined by where a person subject to removal resides. For example, an immigrant in the Tampa Bay area would be placed in removal proceedings in the Orlando Immigration Court. For a list of immigration courts in the United States, visit this link.

The Notice to Appear is the equivalent of an information in criminal proceedings. It usually includes several factual allegations regarding the individual which set the predicate of removal and the charges that necessitate removal.

There are two things that an individual in removal proceedings might be charged with: deportability under INA Section 237 or inadmissibility under INA Section 212. The scope of charges ranges from being unlawfully present in the United States to committing genocide. There are also several criminal grounds of removal, which include theft and drug charges. A competent immigration attorney should study these charges carefully and determine whether the government has sufficient facts to support its allegations. Attorney Ahmad Yakzan has a successful track record of fighting on behalf individuals facing removal proceedings. Call us today for a consultation.

For a list of deportation, grounds visit this link.

Immigration hearings are classified into two types: Master and Individual. During a Master hearing, you appear in court along with many people who are in removal proceedings. These hearings are usually status hearings between you, the judge, and the government attorney. The judge also takes pleadings and accepts applications for relief in these hearings.

An Individual hearing, on the other hand, is akin to the trial in a criminal case. During these hearings, the judge determines whether you are eligible for relief, whether the charges should stand, and usually enters a final decision at the end of these hearings. You will be allowed to take testimony from witnesses, cross-examine government witnesses and plead your case. If you do not speak English, the government usually provides you with a translator to help you with your case.

If the decision was entered recently, there are several options. At the end of the individual hearing, you usually get 30 days to appeal the immigration judge’s decision to the Board of Immigration Appeals, in Falls Church, Virginia. The Board is made up of seasoned Board members who decide these cases. Some of their decisions are published and guide all immigration courts in the country.

If the decision was entered more than 30 days ago, you must file a Motion to Reopen with the immigration court or the Board of Immigration Appeals, depending on the place that last controlled the case. These motions are very complicated and usually require new evidence or a change in the law to be considered. If your motion is decided by the immigration judge, your case will be reopened and the prior decision would be vacated. If the order was entered by the Board of Immigration Appeals, then the case will be remanded to the immigration court with jurisdiction over your place of residence.

The first thing to do is to call an immigration attorney and fight any urge to fight it alone. The government hires very competent attorneys whose sole job is to remove you from the United States. If you cannot afford an attorney, you should research organizations in your area that offer free support. You should get a list of such organizations when you are served with a Notice to Appear. Please call us today for the best representation in removal proceedings.

A notice to appear is not the end, it could be a great start when you hire a competent attorney to represent you in immigration court. Call us today to discuss your case.

An immigrant in removal proceedings faces charges of deportability and inadmissibility. The government will charge an immigrant with the alleged deportation grounds using the Notice to Appear. Then, the burden of proving deportability in the subsequent removal proceeding lies in the government.

Under INA § 101(a)(48), a conviction for immigration purposes occurs when the following happens:

• A judge or a jury has found the immigrant guilty
• The immigrant has entered a plea of guilty or nolo contendere or has admitted enough facts to warrant a finding of guilt
• The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed
• Withholding any information is found during the proceedings

These are methods used to determine inadmissibility and deportability in immigration law. The categorical approach compares a state statute to the federal equivalent in deciding whether it is a deportable offense. If the state and the federal statutes match, then the statute is a deportable offense. If not, then the noncategorical approach will be used.

A divisible statute, or a law that includes various offenses, allows a court to reach beyond the statute to determine whether an offense is deportable. This means that the court will have to look into records of conviction and police reports to determine the individual’s conduct to ascertain deportability.

Under INA 101(a)(48)(B), any crimes or convictions after September 30, 1996 may form a basis for removal. Immigration sentences that are vacated need a new decision to ascertain deportability, such as in Matter of Cota, 23 I&N Dec. 849 (BIA 2005). However, an immigrant may not fight their conviction in immigration court, but in criminal court.

In Padilla v. Kentucky, the US Supreme Court ruled that a criminal attorney must inform a client of the immigration consequences of his plea.

CIMTs are heinous crimes that make an immigrant or a lawful permanent resident deportable. An immigrant meets this situation if they:

1. Were convicted
2. Were convicted of a crime involving moral turpitude
3. Committed the act within five years of admission
4. Were convicted of a crime where a term of more than one year may be imposed.

A lawful permanent resident can also fit the criteria if they have:

1. Been convicted of multiple crimes involving moral turpitude
2. Been convicted at any time after admission
3. Have not arisen of the same criminal misconduct

Immigrants who use illegal substances or have been convicted of a drug-related crime may be deportable. Meanwhile, a lawful permanent resident could apply for waivers. There is an exception, however, for first-time offenses for less than 30 grams of marijuana.

The Immigration Service can also charge deportability if the person was convicted of a drug trafficking crime. Drug trafficking aggravated felonies are chargeable when:

1. The conviction meets the definition of trafficking
2. A state offense is equivalent to a federal trafficking felony
3. The government uses the “reason to believe” ground for inadmissibility purposes

Under INA § 101(a)(43), a person who has been convicted of an aggravated felony is deportable. The statute lists the following crimes as aggravated felonies:

• Murder, rape, or sexual abuse of a minor
• Illicit trafficking in a controlled substance
• Illicit trafficking in firearms or destructive devices
• Money laundering
• Explosive and firearms offenses
• Crime of violence
• Theft or burglary offenses with a one-year imprisonment
• Ransom crimes
• Child pornography
• Racketeering crimes with a one-year imprisonment term
• Prostitution, trafficking, and involuntary servitude
• Sabotage
• Fraud or deceit crimes where the loss to the victim is more than $10,000
• Alien smuggling
• Counterfeiting or mutilating passports
• Failure to appear by a defendant for a crime that is imprisonable for five years
• Obstruction of justice
• Conspiracy or attempt to commit any of the crimes above

Aggravated felonies have serious consequences. Before entering a plea on your case, please consult with an immigration attorney for better legal information.

Any immigrant is deportable if they are convicted of a crime of violence, as defined under 18 USC 16. However, the United States Supreme Court has ruled in Sessions v. Dimaya that the statute was unconstitutionally vague and that the law is unsettled on this line of cases.