Immigration & Naturalization

Immigration & Naturalization > Deportation/Removal

If you, a family member or friend has been detained by Immigration and Customs Enforcement (ICE) or served with a Notice to Appear before the United States Department of Justice Executive Office for Immigration Review (EOIR) and are in removal proceedings because of a criminal conviction, you should contact the firm of Lloyd Bennett, Esq., P.C., today. We can protect your rights in removal proceedings before the Immigration Court. These proceedings must be taken seriously. Your future in the United States depends upon a successful outcome.

Everyone in removal proceedings has a right to a lawyer. However, there is no right to a free court appointed lawyer as in the criminal system in New Jersey. Therefore, those in removal proceedings must find their own immigration lawyer who understands the process. Our law firm routinely represents immigrants in removal proceedings before the Immigration Court. (See our case results for a sample of the types of cases we have handled).

We offer initial in-office consultations or personal visits to detainees in the New Jersey/ New York metro area. We offer a fair price for the work performed. We pledge to review all available options and will fight for the rights of our clients. To schedule a consultation, please contact our office.

Overview

The immigration laws have changed over the past ten years, making it more likely that those who have entered illegally, overstayed their visas or committed crimes within the United States will come to the attention of the USCIS. Today, many crimes, including old cases, make immigrants -- including lawful permanent residents (green card holders) -- subject to mandatory detention and removal from the U.S.

Removal proceedings, formally called deportation, can be started by the USCIS after a routine criminal background check that occurs upon reentry to the United States after a trip abroad, the renewal of a green card or employment authorization, or upon an application for Naturalization or another immigration benefit. Frequently, removal procedures are started as the result of an arrest for a criminal offense. If the police determine that the alien arrested has an immigration issue, they may notify and/or transfer custody to Immigration and Customs Enforcement (ICE). Removal proceedings are started with the service of a Notice to Appear (NTA), which states the reasons the government is attempting to remove the alien from the United States.

The NTA will charge the alien with one of the grounds of deportability under INA 237 (a) or will charge that the alien is inadmissible to enter the United States under INA 212 (a). The charge depends on whether there was an “admission” to the United States.

Admission Defined

Admission is defined by INA 101 (a)(13)(A) as the lawful entry of an alien into the United States after inspection and authorization by an immigration officer. A lawful permanent resident (green card holder) who reenters the United States after a trip abroad is not seeking a new admission unless he/she:

Has abandoned or relinquished lawful permanent resident status;
Has been absent from the United States for more than 180 days;
Engaged in illegal activity after departing;
Departed during removal proceedings;
Committed an offense making him or her inadmissible under 212(a);
Is attempting to enter at a place other than a point of entry;
Has entered without inspection;
Is adjusting status (according to the BIA).

Grounds of Inadmissibility to the United States

Applicants for visas are not eligible for admission into the United States if the immigration officer determined that the alien is inadmissible under INA 212 (a)(2) for the following reasons:

Health related, such as communicable diseases, lack of vaccinations, physical and mental disorders and drug abuse (waivers are available);
Security grounds for those who may be engaged in terrorism, have participated in torture or genocide such as former Nazi party members, were members of Communist or totalitarian parties or those engaged in any espionage or sabotage;
Those likely to become public charges who do not have family members who can support them;
Those coming to the United States to work without an approved labor certification;
Undocumented entry and immigration status violations such as fraud, misrepresentation or deceit;
Lack of proper documentation upon entry;
Failure to maintain foreign residence (waivers available);
False claim to U.S. citizenship;
Those who have been previously ordered removed:
- After first deportation cannot reenter for 5 years;
- Second deportation cannot reenter for 20 years;
- Aggravated felony deportees are permanently barred from reentry;
Unlawfully present for more than 180 days but less than one year are inadmissible for three years, more than one year inadmissible for 10 years.
Miscellaneous grounds, such as those practicing polygamy or child abductors;
A non-citizen or lawful permanent resident who travelled outside the US and is seeking readmission can be inadmissible for:

The commission or conviction of a controlled substance or drug trafficking offense (waiver for a single offense of 30 grams or less of marijuana);
A crime of moral turpitude (see below for definition and waivers).

Grounds for Deportation/Removal

Legal permanent residents and those lawfully admitted to the United States can be charged with grounds of removability under INA 237(a) and are subject to removable for the following reasons:

Crimes of moral turpitude, aggravated felonies, controlled substance violations, weapons offenses, domestic violence and crimes against children;
Immigration violations including overstays, present without inspection and smuggling;
Security clearance;
False claims to citizenship and unlawful voting charges;
Charges relating to failure to register or falsification of documents;
Public charge issues;
Illegal entry.

Detention Information

Aliens subject to removal are now more likely to be detained by Immigration and Customs Enforcement (ICE). Once detained, ICE must advise the alien within 48 hours as to whether the alien will be detained or released on bond and whether an Notice to Appear will be issued. Some are subject to mandatory detention; others are eligible for bond and release from custody. ICE maintains detention facilities throughout the United States. Click here to locate information about a detention center. In addition, criminal aliens may be held in local jails.

If the alien is not eligible for bond, they will have to fight their removal case from custody. Bond can be set by the government or an immigration judge upon application for a bond hearing. The amount is determined by looking at two factors: (i) flight risk or risk that the alien would not come back to court if released, and (ii) danger to the community. The judge will also evaluate other factors about the alien’s life, such as work and family history, family relationships, tax records and criminal background.

Bond amounts are required to be paid in full and are returned to the payor upon the conclusion of the case and only if the alien has complied with the court’s orders. Bonds that are too high or too low can be appealed, but the appeal takes several months to decide, and the immigration judge may order removal before the appeal is decided. Therefore, it is important to have representation at the initial bond hearing.

Who is Subject to Mandatory Detention

Lawful Permanent Residents (Green Card Holders) and those who overstayed their visas are Subject to Mandatory Detention if they were convicted and released from jail after October 8, 1998, of:

Two crimes of moral turpitude ;
One aggravated felony;
One controlled substance offence; or
One firearms offense.

Lawful Permanent Residents returning from a trip abroad, persons who entered without inspection (EWI), or persons seeking admission into the United States are subject to mandatory detention if they were convicted and released from jail after October 8, 1998, because of:

One crime involving moral turpitude (subject to petty offense exception; if there is no prior criminal history, the offense was not punishable by more than one year in jail and did not serve more than six months in jail);
One controlled substance offence;
One drug trafficking offense;
Two or more offenses with ag gregate term of five years;
One prostitution offense; or
One domestic violence offense or violation of protection order.

Conviction Defined

The term conviction means that a formal judgment of guilt has been entered by the court or, if adjudication of guilt was withheld, where a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant the finding of guilt, and the judge has ordered some form of punishment, penalty or restraint on the alien’s liberty to be imposed. Expungements are considered convictions. New Jersey’s pre-trial intervention program and conditional discharge programs are not convictions if they do not require an admission of guilt. However, some prosecutors require this admission prior to entering the program. Each state’s program must be reviewed.

Post conviction relief that vacated the conviction is not a conviction for immigration purposes. However, if the conviction is vacated due to rehabilitation or immigration hardships then the conviction is not eliminated.

A drug treatment or domestic violence counseling alternative to incarceration could be considered a conviction for immigration purposes if a guilty plea is taken -- even if the guilty plea might later be vacated. Certain deferred adjudication dispositions with guilty pleas could be considered convictions. A juvenile adjudication will not be considered a conviction.

The term imprisonment includes suspension of sentence or execution of the sentence and time imposed not sentenced is important.

Crime of Moral Turpitude

Green card holders and those who entered without inspection (EWIs) can also be affected by a crime of moral turpitude (CMT). CMTs are crimes that involve conduct that is inherently bile, vile or depraved and contrary to the accepted rules of morality and the duties owed between persons, or society in general. Crimes with intent to steal or defraud such as theft, fraud or serious violence are CMTs; regulatory offenses are CMTs. CMTs generally involve crimes in which bodily harm is caused or threatened by an intentional act.

Green card holders will be subject to removal if convicted of one CMT committed within five years of admission and for which a sentence of one year or more was possible. The maximum possible sentence is relevant, not the actual sentence imposed. A CMT is a problem for those applying for their green cards unless it falls under a petty offense exception. This exception, also known as a waiver, is available where only one offense has been committed and the maximum possible penalty for the crime does not exceed imprisonment for one year and if there is a conviction, the term of imprisonment did not exceed six months.

Aggravated Felony Defined

The term "aggravated felony" according to INA 101(a)(43)) refers to the following crimes:

Murder, rape, or sexual abuse of a minor;
Illicit trafficking in a controlled substance including drug trafficking crime;
Illicit trafficking in firearms or destructive devices or in explosive materials;
Money laundering and other financial transactions if the amount of the funds exceeded $10,000;
An offense relating to explosive materials and firearms;
A crime of violence for which the term of imprisonment [is] at least one year;
A theft offense (including receipt of stolen property) or burglary offensefor which the term of imprisonment [is] at least one year;
Ransom offense;
Child pornography;
Racketeer or gambling offenses for which a sentence of one year imprisonment or more may be imposed;
Prostitution ownership, controlling, managing, or supervising and offenses relating to involuntary servitude, slavery or trafficking in persons;
Gathering, disclosing or transmitting national defense information and disclosure of classified information relating to treason;
An offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or tax evasion in which the revenue loss to the Government exceeds $10,000;
Alien smuggling, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual);
Unlawful entry or reentry into the United States after prior deportation for an aggravated felony;
Forging, counterfeiting, mutilating, or altering a passport or other instrument or document fraud for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual);
Failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;
Commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;
Perjury or subornation of perjury, or bribery of a witness, or obstruction of justice for which the term of imprisonment is at least one year;
Failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed; or
An attempt or conspiracy to commit an aggravated felony.

Immigration Court Proceedings

If the alien is detained, there is no guarantee that they will be detained in the state where they live or that the case will be heard in the state where they live. Immigration can and frequently does transfer detainees all around the United States. Our office can file an application for a Change of Venue to bring the case closer to the alien’s home. However, for those subject to mandatory detention, this procedure is difficult. The first date to see the immigration judge will be scheduled within several weeks of initial detention. This first hearing is called a Master Calendar Hearing. The judge will review the case and listen to arguments from counsel about the relief the alien may be eligible for. Once eligibility is determined, the judge will schedule an Individual hearing which is the trial date to prove eligibility.

At the Individual hearing testimony, the judge will consider documents and testimony needed to prove the claim for the relief requested. The judge will make his or her decision and examine the positive and negative factors. Some of the factors the judge will consider are as follows:

Positive Factors

Family Ties Within the United States: Birth certificates, marriage certificates, family photos, copies of family member green cards, U.S. Passports or naturalization certificates, and letters from family members;
Length of Residence in the United States: Apartment leases or mortgages, letters from neighbors, and telephone, cable, and electric bills;
Evidence of Hardship to Family Members if Deported: Records of any medical, psychiatric or educational disabilities of family members who depend on the alien; testimony or letter from the spouse (even if separated or divorced) showing that the alien provides financial and emotional support the children;
Evidence of Hardship if Deported: Medical or education records indicating a disability or chronic health condition;
Country Condition Reports : Newspaper and magazine articles, or U.S. State Department Country Reports on the human rights and/or economic conditions in the home country;
Service in the United States Armed Forces: Discharge papers, commendations, VA benefits statements;
History of Employment: Letters from employers, pay stubs, W-2 forms, social security earnings statements;
Ownership of Property in the United States: Mortgage, bank statements;
Tax History: Copies of tax returns from as many years back as available;
Proof of Rehabilitation: Certificates of attendance at drug or alcohol rehabilitation programs, letters from counselors, therapists, or sponsors;
Community Service: Letters from youth sports programs, church groups, and civic organizations; and
Any Other Evidence That May Exist of Good Moral Character.

Negative Factors:

Negative factors include criminal history and the circumstances of the crimes for which convicted;
Lack of work history and payment of taxes;
Any other violations of the immigration laws, or any other evidence of bad character.

Voluntary Departure (VD)

If a determination is made that the alien has no ability to remain in the United States, an application for Voluntary Departure should be made. The advantage to VD is that an order of deportation will not be entered against the alien. Therefore, the alien could return to the United States in the future upon the issuance of a visa. If ordered, the removed the alien would not be eligible to reenter the United States for 10 or more years. Voluntary departure is:

Not available to arriving aliens;
Not available to those with aggravated felony convictions or those who are security concerns;
Not available to those with prior removal orders;
Granted up to 120 days if before end of proceedings;
Up to 60 days if request made at end of proceedings must have physical presence for at least one year before filing of NTA (not available to arriving aliens);
Must have good moral character for at least five years before application;
Must have travel documents and a ticket;
Failure to depart makes alien ineligible for 10 years for cancellation of removal, adjustment of status, change of non-immigrant status and subject to civil penalties.

Forms of Relief from Removal

Once the court has determined that the alien is removable, the next step is to determine whether the alien has any relief from removal. There are several different types of relief depending upon the situation:

1) Cancellation of Removal for Lawful Permanent Residence

Continuously resided in the United States for seven years after admitted. Clock stops when served notice to appear or commits inadmissible offense or deportable offense referred to in inadmissibility grounds;
Five years as a lawful permanent resident;
Has not been convicted of aggravated felony;
No prior cancellation or 212 c relief from deportation;
Not a terrorist crewman or exchange visitor; and
Positive outweighs negative factors.

2) 212(c) Waiver for Lawful Permanent Residents

Lawful permanent resident (LPR) who pled guilty before April 24, 1996, to an inadmissibility grounds or deportable offense referred to in inadmissibility grounds;
LPR who has maintained unrelinquished domicile for seven years;
Positive outweighs negative factors; and
Has not served a term of imprisonment of five years or more for one or more aggravated felony conviction.

3) Cancellation of Removal for Non-Lawful Permanent Residents

Available to refugees, asylees or undocumented non-citizens;
Continuous presence in the United States for 10 years;
Barred by single absence of over 90 days or ag gregate absence of over 180 days;
Clock stops on continuous presence with service of NTA or commission of the offense in 212 (a)(2), 237 (a)(2) &(a)(4);
Good moral character for 10 years prior to the application;
Disqualified from proving good moral character if committed offense listed in 101 (f);
Not convicted of offense in 212 (a) (2), 237 (a)(2); (a) (4); and
To depart would cause exceptional and extremely unusual hardship to lawful permanent resident or USC spouse, child or parent.

4) 212(h) Waiver for Inadmissibility

Clock stops upon service of NTA;
Not convicted of a drug offense except for one time simple possession of 30 grams of marijuana;
If crime was committed less than 15 years ago and did not involve prostitution, will need to show that alien is spouse, parent, son or daughter of USC or lawful permanent resident and denial of alien’s admission would be an extreme hardship for relative; and
Lawful permanent residents need seven years of residence and no aggravated felonies before immigration case started.

5) Asylum

Prohibits return of aliens who have a “well founded fear” of returning to their country;
Generally must apply within one year of last arrival in United States;
Eligible for adjustment after one year; and
Cannot have been convicted of a “particularly serious crime,” such as an aggravated felony.

6) Withholding of Removal

Prohibits return of aliens where a clear probability exists (more likely than not) that life or freedom would be threatened because of race or religion or nationality membership in a particular social group or political opinion;
Barred by aggravated felony with ag gregate sentence of five years;
Grant is actually deferred removal order until such time it is safe to return; and
Could be detained and if released will be required to report to immigration on periodic basis.

7) Convention Against Torture

Prohibits the return to any country where alien may be the subject of torture; and
Torture would be intentionally inflicted for an illicit purpose by or at the instigation of, or with the acquiescence of, a public official who has custody and control over the alien, and not arising out of a lawful sanction.

8) Adjustment of Status

This form of discretionary relief is available to change an alien’s status from a non-immigrant to a lawful permanent resident. Aliens who have been previously admitted into the United States can apply to USCIS for adjustment of status, while aliens in removal proceedings apply before an Immigration Judge. Several conditions must be met, including that the alien is admissible for permanent residence, and an immigrant visa is immediately available at the time of application. Aliens who qualify for visas allowing an adjustment of status are often petitioned for by a spouse (or another family member) or an employer. Certain individuals, including criminals and aliens who fail to appear for proceedings or fail to depart after a grant of voluntary departure, and those who were ordered removed, may be ineligible for adjustment of status.

9) Miscellaneous Waivers of Inadmissibility

Fraud or willful misrepresentation waiver:
a) Not available to those who made a false claim to U.S. citizenship;
b) Applicant must be a spouse, son or daughter of a U.S. citizen or LPR;
c)Refusal of admission would result in extreme hardship; applicant is the spouse or child of a U.S. citizen or LPR and has been the victim of domestic violence and shows that refusal of admission would result in extreme hardship to him/her or the U.S. citizen or LPR relative;
Smuggling Waiver:
a) Alien is LPR;
b) Temporarily left the United States and is not under order of removal;
c) The alien aided a spouse, parent or child; andd) Alien’s admission would be to ensure family unity.

There are several other rarely used waivers available for immigration violations and document fraud along with waivers for health related grounds of inadmissibility and waivers for unlawful presence and old removal orders. Please contact us for more information.

Administrative and Judicial Relief

Motions to Reopen or Reconsider – An alien may move to reopen or to reconsider a previous decision by filing a timely motion with an Immigration Judge or the BIA. The purpose of a motion to reopen is to introduce new and additional evidence that is material and that was unavailable at the original hearing. A motion to reconsider seeks a reexamination of the decision based on alleged errors of law and facts. Unless an exception applies, a party may file only one motion to reopen and one motion to reconsider. With a few exceptions, a motion to reopen proceedings must be filed within 90 days of the final removal order, while a motion to reconsider must be filed within 30 days of the date of the final order. The filing of such motions does not suspend the execution of the removal decision unless a stay is ordered, or the alien seeks to reopen an in absentia order (a decision made when the alien was absent at the proceeding).

Stay of Removal – A stay of removal prevents the executing of an order of removal, deportation or exclusion. Depending on the situation, a stay of removal may be automatic or discretionary. An alien is entitled to an automatic stay of removal during the time allowed to file an appeal (unless a waiver of the right to appeal is filed), while an appeal is pending before the BIA, or while a case is before the BIA by way of certification. Except in cases involving in absentia orders, filing a motion to reopen or reconsider will not stay the execution of any decision made in a case. Similarly, filing a petition for review in Federal court also does not result in an automatic stay of a removal order. Thus, a removal order can proceed unless the alien applies for and is granted a stay of execution as a discretionary form of relief. Such a stay is temporary and is often coupled with a written motion to reopen or reconsider filed with the Immigration Court, the BIA, or an appeal to a Federal Circuit Court.

Administrative Appeal – The BIA is the highest administrative body with the authority to interpret Federal immigration laws. The BIA has jurisdiction to hear appeals from decisions of Immigration Judges and certain decisions of DHS. Either an alien or DHS may appeal a decision from the Immigration Judge. In deciding cases, the BIA can dismiss or sustain the appeal, remand the case to the deciding Immigration Judge, or, in rare cases, refer the case to the Attorney General for a decision. A precedent decision by the BIA is binding on DHS and Immigration Judges throughout the country unless the Attorney General modifies or overrules the decision. With respect to the filing deadline, the appeal of an Immigration Judge’s decision must be received by 30 calendar days from the date it was issued by the court.

Judicial Review – The Immigration and Nationality Act confers Federal courts jurisdiction over certain decisions appealed from the BIA. However, subsequent laws have substantially restricted judicial review of removal orders. An alien has 30 days from the date of a final removal decision to file a judicial appeal, which is generally filed with the Court of Appeals. The procedures and applicability of judicial review in immigration cases are complex and governed by a number of court decisions and interpretations that, in many circumstances, are not clearly resolved. For an understanding of how judicial review might apply in a specific case, qualified legal counsel should be consulted.