DEPORATION - IMMIGRATION'S PROCESS OF REMOVING FOREIGN ALIENS
Greetings everyone! In this week's article I will be covering deportations, or what is now referred to as "removal" proceedings. The United States Citizenship and Immigration Services (USCIS) defines deportation as "the formal removal of an alien from the United States when the alien has been found removable for violating the immigration laws" (https://www.uscis.gov/tools/glossary/deportation). In other words, deportation is the process by which an alien - a foreign national of another country - is ordered removed from the United States because he/she has committed some type of "deportable offense".
Deportable Offenses - Things You've Done That Can Get You Deported
To better understand immigration's removal process, we must first understand why someone would be deported: What did they do that was so bad to warrant their removal from the United States? To answer this, we must look at what the alien did, and then determine if these actions constitute an immigration violation that are deemed deportable.
For the most part, deportable offenses* are categorized into the following 3 classes:
(1) Crimes of "moral turpitude" - Although determining whether an act is a crime of "moral turpitude" is often a subjective determination and therefore difficult to define, we can look to the Board of Immigration Appeals (BIA) for some guidance. In past decisions, the BIA has describe moral turpitude as a “nebulous concept,” and one that “refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one's fellow man or society in general.” The person committing it should have had either an “evil intent” or been acting recklessly. Some examples of past offenses found to be crimes of "moral turpitude" include fraud, larceny, aggravated driving under the influence ("DUI"), etc. and possibly domestic violence.
(2) Aggravated Felonies - This includes crimes such as murder, rape, trafficking of drug or firearms, sexual abuse of a minor, child pornography; money laundering, fraud or tax evasion involving more than $10,000, etc. (Immigration and Nationality Act § 101(a)(43)).
(3) Covered Classes of Deporatable Alients under INA § 237 - Some examples here include aliens that were either inadmissible at the time of their entry into the US, or those that violated their immigration status by overstaying their visas. Also drug crimes, illegal possession of firearms or the illegal sale of firearms, child abuse/neglect, etc. are specifically listed under section 237 of the INA.
* NOTE: Not all offenses are deportable simply because you committed them. It depends on the severity of the offense, the possible penalty that can result and other factors. Please consult a reputable immigration lawyer should you need to discuss your specific case.
The Removal Process / Deportation
Removal from the United States through deportation is a multi-step process that occurs over a mostly, lengthy period of time. From the initial "Notice to Appear" (NTA) by the Immigration Court, to a number of master/individual hearings, to the judge's final order, this process does not happen over night; in fact, it can actually take several months, or even years. I've had a case that took 9 months, and another that is currently pending and going on 3 years! So, yes, the time it takes to handle a deportation/removal can vary from one case to another. No two cases are the same: different set of facts, different immigration judge, different government prosecuting attorneys.
The Beginning of the Process: Service of the Notice to Appear (NTA)
The removal process normally begins when the US Department of Homeland Security ("DHS") sends you a Form I-862, Notice to Appear (NTA) - see my attached sample NTA for reference. The NTA will indicate your name and the country in which you were born, as well as the following:
- The date you are to appear in court before an Immigration Judge (IJ)
- Nature of the proceedings
- Legal authority under which the proceedings are being brought
- The alleged acts you committed that violated the law
- Charges filed against you and the statutory laws that have been allegedly violated
- Your right and ability to be represented by an attorney at your own expense, and
- The consequences of your failure to appear at the hearing (which include that you might be issued an order of deportation in your absence, which would block any chance you might have of gaining U.S. immigration benefits for the next ten years, at least).
The Master Hearing
During this first hearing, the court will verify your identity: Name, current address, etc, review the allegations against you in the charging NTA, and possibly determine whether you accept or deny them. If the judge determines that the basic charges in the NTA are correct, but that you may possibly be eligible for some form of relief, the judge can schedule another hearing. The judge can set these future master hearings in order to secure additional documents, prepare evidence, conduct discovery, or await the status of a pending application with the USCIS.
Individual "Merits" Hearing
The merits hearing is the trial portion of your deportation case. At this hearing, the government's attorney (Counsel for DHS) has the burden of proving by "clear, convincing, and unequivocal evidence" that you, the alien, is removable. At this individual hearing, you or your attorney will make your defense: Opening statement, call and examine witnesses, prepare evidentiary exhibits, and make a convincing case that removal is not appropriate.
At the conclusion of your individual merits hearing/trial, the immigration judge will review everything that was presented - evidentiary documents, applications, witness testimony, sworn affidavits, etc - and make a decision.
JC's Conclusion: I hope none of you out there has to ever endure a deportation. Receiving an NTA is stressful and the process of defending one is not fun. It can be scary, tiresome and outright, one of the worse things that can happen in anyone's life. I hope you never receive an NTA, but if you do, I am here to help you.
Disclaimer: The information contained herein have been prepared for informational purposes only and are not to be considered legal advice unless otherwise specified. If you have a specific question regarding your personal case, please contact us directly at the Law Offices of Joseph Chitmongran for a full consultation.