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. Foreign nationals 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 will 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 wil 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 request redetermination of the bond status or payment amount. Unlike criminal cases, immigration bonds must be paid in full before release is possible.
If bond is offered, the foreign national will be released until his or her immigration case is decided by the Immigration Court.
If a foreign citizen is detained, a federal officer can decide not to put them into removal proceedings. This is most likely to happen for persons with U.S. citizen 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 foreign national to stay for some period of time or indefinitely. The foreign citizen may be able to obtain employment authorization, but may not be granted any other immigration status.
Every foreign citizen who is detained will be asked by an immigration officer if he or she is afraid to return to their native country. 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, he or she 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 court judge will review the decision.
Attorneys may represent clients at any point in these 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 or the case and how to document it. It is possible for attorneys to discuss these matters even if the loved one is detained.
The following types of 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 foreign national is eligible for permanent residence or another immigration status. If the case is closed, no future hearings will be scheduled and removal will be temporarily avoided, but the foreign citizen will not gain any immigration status as a result, and could be placed back into proceedings at any time. If the foreign citizen is later granted permanent residence, he or she must file another motion to the immigration judge to terminate the case in court permanently.
Foreign nationals may qualify for asylum if they either were persecuted or believ they will be persecuted in the future in their native countries on account of their race, nationality, religion, political opinion, or membership in a particular social group. There is a oneyear deadline from the time of entry to the United States to apply for asylum. Those who do not apply timely may qualify for withholding of removal or for relief under the Convention Against Torture instead. It is also possible to apply for for these types of relief after being placed in removal proceedings. People with 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, if they have a U.S. citizen or permanent residence spouse, parent, or child, if they have good moral character, and if the can show that their removal will cause extreme and unusual hardship to the U.S. citizen or permanent resident relative. Congress has limited the number of immigrant 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 qualifying relatives who are U.S. citizens, but persons relying on permanent resident relatives must usually wait for a visa number. The length of time a foreign national will wait depends on the type of relationship and the country of the foreign national’s origin.
Not finding what you want? Reach out directly through our Contact Us page.