Attorney Dayna Wheatley is experienced in all phases of removal (deportation) proceedings: detention, bond, prosecutorial discretion, credible fear, administrative closure, asylum, cancellation of removal (deportation), and adjustment of status.
Detention is the first phase of removal (deportation) proceedings, whether it is by U.S. Customs and Border Patrol (CBP) at the border or by U.S. Immigration and Customs Enforcement (ICE) within the United States. Immigrants may be detained for any immigration violation, but not all cases are a high priority for enforcement. Those convicted of serious crimes will be subject to mandatory detention and may not be released until their court hearings are over if their case is approved, or until they are deported.
If a loved one is detained, it is necessary to contact an immigration attorney as soon as possible to learn whether it will be possible to obtain a bond or to file for a status that will allow him or her to remain in the United States. The more information you can give to the attorney about the foreign national’s immigration history and criminal background, the better an attorney will be able to serve you.
Not every detained person will be offered bond. If the U.S. Immigration Customs Enforcement (ICE) officer decides not to offer it, or sets the bond very high, an attorney may file a motion with the Immigration Court to ask for bond or for a lower bond. Unlike criminal cases, immigration bonds must be paid in full before release is possible.
If bond is offered, the immigrant will be released until the immigration case is decided by an immigration judge.
If an immigrant is detained, a federal officer can decide not to put him or her into removal (deportation) proceedings. This is most likely to happen for those with U.S. citizen or permanent resident close family members, who have not been arrested or any crimes, and who have shown they have good moral character. For persons with this type of history, it may be possible for an immigration attorney to assist in obtaining permission for the immigrant to stay in the United States for some period of time or indefinitely. The foreign citizen may also be able to obtain employment authorization, but will not be granted any other immigration status.
All immigrants who are detained will be asked by an immigration officer if they are afraid to return to their native countries. If the answer is yes, the person will be interviewed to determine whether he or she is eligible to apply for asylum. If the immigration officer decides the person can apply for asylum, the immigrant may be released after the interview so the foreign citizen can apply for asylum and have a hearing in immigration court. If the immigration officer decides the foreign citizen is not eligible for asylum, an immigration judge may review the officer’s decision. If the judge agrees the immigrant does not have a case for asylum, the immigrant will be deported.
Attorneys may represent clients at any point in deportation proceedings. Any person who is afraid to return to his or her native country should consult with an immigration attorney in order to understand the strength of the case and how to document it. It is possible for attorneys to discuss these matters even if the immigrant is detained.
The following types of removal (deportation) relief may be requested by persons in court removal proceedings, if they apply:
A judge may grant a motion to close a case at any time during immigration court proceedings. Cases will most likely be closed if the immigrant is eligible for permanent residence or another immigration status. If the case is closed, the immigrant can pursue lawful status and no future hearings will be scheduled. Deportation will be temporarily avoided and once the immigrant obtains status, the court proceedings can be terminated for good.
If the immigrant’s case is closed but he or she is not entitled to any other legal status, the immigrant will not gain any immigration status as a result of case closure, and could be placed back into court proceedings if they commit a crime.
Foreign nationals may qualify for asylum if they either were already persecuted or believe they will be persecuted in the future in their native countries because of their
- Political opinion, or
- Membership in a particular social group.
There is a one-year deadline from the time of entry to the United States to apply for asylum. Those who do not apply on time may qualify for withholding of removal or for relief under the Convention Against Torture (CAT) instead.
Immigrants granted asylum may apply for permanent residence after one year.
Cancellation of Removal
Foreign nationals qualify for cancellation of removal if:
- they have been continuously present in the United States for ten years
- they have a U.S. citizen or permanent residence spouse, parent, or child under the age of 21
- they can show that their removal will cause extreme and unusual hardship to the U.S. citizen or permanent resident relative.
- they have good moral character
Congress has limited the number of visas for these types of cases on an annual basis, and the hardship standard is extremely high and difficult to meet. If the cancellation of removal is granted however, the foreign national will become a permanent resident.
Adjustment of Status
A person may request an immigration judge to adjust his or her status to permanent resident if otherwise eligible. While there is no hardship requirement, the petitioner for the relative must:
- have already filed a petition for alien relative,
- the petition must be approved, and
- a visa number must be immediately available to the foreign national before the judge can grant adjustment.
Visa numbers are always available to those with U.S. citizen spouses, parents, children under the age of 21, or in certain employment-based categories. A judge would hold a hearing to review the adjustment of status applications and take testimony. If granted, the immigrant will become a permanent resident.
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