People Facing Deportation
Removal proceedings are hearings held before an immigration judge to determine whether an individual may remain in the United States. Removal proceedings begin when the government alleges an individual does not have valid immigration status or an individual has done something to end otherwise valid immigration status.
- Removal proceedings commence when a U.S. immigration official files a “Notice to Appear” including allegations against the individual with the Immigration Court.
- The government must prove the allegations and the grounds for removal. If the individual who received the notice does not appear for a hearing, however, the immigration judge will most likely grant the government’s request for removal.
- Removal proceedings begin with an initial hearing, known as a master calendar hearing. (An individual may have multiple master calendar hearings.) At the master calendar hearing, the individual facing potential deportation, who is known as the respondent, must admit or deny the charges brought against him or her. The respondent also has an opportunity to identify any defenses to removal he or she may have and file application(s) for relief from removal, such as an application for asylum, cancelation of removal, or adjustment of status.
- The next hearing, known as the individual calendar hearing or merits hearing, is usually scheduled during the master calendar hearing. The master calendar hearing is generally very brief, and the respondent may supplement the motion or application he or she filed during the master calendar hearing with additional evidence and documentation until fifteen days before the merits hearing.
- The merits hearing is a longer, more involved proceeding during which a judge will hear testimony and review evidence and legal arguments in order to make a decision on the motions or applications before the court.
The attorneys at Wilkes Legal, LLC work at the cutting edge of immigration law to offer clients effective, comprehensive, and innovative removal defense strategies. We understand that removal proceedings can be extremely stressful for clients and their families. We recognize the complexities immigrants face and work to find appropriate and realistic solutions for each individual’s unique situation. Every client in removal proceedings is given our utmost care and attention, and we support our clients through every stage so that they are well informed and able to present the strongest case possible.
Asylum in Removal Proceedings
Those facing removal proceedings who suffered persecution or fear future persecution in their home countries if they return may be eligible for asylum as a defense to removal.
- Asylum seekers must show either that they suffered or may suffer persecution – a threat to their life or freedom.
- They must demonstrate that the persecution is because of their race, religion, nationality, political opinion, or membership in a particular social group.
- The persecution they fear must be from the government or from organizations or individuals the government is either unwilling or unable to control.
- The risk of persecution must exist throughout the person’s country, and not be limited to a single region or location.
The attorneys at Wilkes Legal, LLC listen to our clients’ stories to evaluate whether asylum may be available to them as a defense to deportation. Eligibility depends on the details of their experiences and the conditions in their home country. Please review our “Asylum” page for more information. Our attorneys explore all available options to protect our clients against removal.
Cancellation of Removal
A form of relief known as “Cancellation of Removal” may be available to those in removal proceedings who have been in the country for a significant period of time and have not committed certain crimes. If this relief is granted, applicants will either be allowed to keep or will receive a green card and removal proceedings will end.
- To be eligible, lawful permanent residents must demonstrate they have been in the country for seven years and have had lawful permanent resident status for at least five years.
- Non-lawful permanent residents must demonstrate they have been in the country for ten years, have good moral character, and that their removal would result in exceptional and unusual hardship for their spouse, parent or child who is legally in the United States as either a citizen or permanent resident.
- Special provisions are available for spouses or children who are survivors of domestic abuse.
The standards for cancellation of removal are high and immigration judges have a great deal of discretion when assessing applications. The attorneys at Wilkes Legal, LLC can analyze whether individuals facing removal proceedings are good candidates for cancellation of removal. When pursuing this strategy, we work closely with our clients to thoroughly document their cases and to present the facts of their cases convincingly. We are respectful of our clients’ stories and forceful in our advocacy on their behalf.
Motions (to Reopen, Terminate, etc.)
Individuals facing deportation may challenge the government’s charging document (“Notice to Appear”), the government’s allegations against the individual, or the government’s evidence using motions to terminate or dismiss, motions to suppress, motions to reopen, and motions to reconsider. These motions provide an opportunity to highlight mistakes in the government’s documentation or handling of the case, to share important new or existing facts in a case, or to clarify favorable aspects of law.
- A “Motion to Terminate” asks a court to dismiss a case and alleges that the government’s charges are substantively or procedurally defective. This type of motion may be filed as soon as the government files a “Notice to Appear” initiating removal proceeding with the immigration court.
- A “Motion to Suppress” can be filed during removal proceedings to ask the immigration judge to exclude evidence obtained by federal immigration officials in violation of the U.S. Constitution and other provisions of federal law. If a motion to suppress is granted and the government is prevented from using the evidence in question, government counsel may become unable to prove its case and may have to ask the immigration judge to terminate removal proceedings.
- A “Motion to Reopen” may be filed after a court has made a final decision. Motions to Reopen inform the court that new facts are available and ask the court to review its decision taking the new facts into account. The new facts must be supported by affidavits or other documentary evidence, and the information presented must not have been available at the time of the previous hearing.
- A Motion to Reconsider asks the court to reconsider its decision. An individual may file a motion to reconsider if he or she can demonstrate that the court incorrectly applied law or policy, or that the decision was incorrect based on the evidence in the record of proceedings at the time of the decision
- There are strict time limits for motions to reconsider and reopen.
- A motion to reconsider must be filed within 30 days of the date of entry of a final administrative order.
- A motion to reopen must be filed within 90 days of the date of entry of a final administrative order, subject to certain exceptions.
- Both motions must be made prior to a person’s actual removal from the U.S.
- An exception to these time limits may be granted for individuals who wish to apply for asylum because conditions in his or her home country have changed.
The attorneys at Wilkes Legal, LLC pursue every opportunity to protect our clients from removal. We will advise clients of opportunities to pursue motions to terminate, reopen, and reconsider if they become available. We vigorously defend clients from removal, build the strongest possible cases to challenge the government through every step of removal proceedings, and do not hesitate to demand the court reopen or reconsider decisions when there is an opportunity to reverse a court’s determination in our clients’ favor.
A bond is money that a relative, friend or bond company pays to the government to allow a person detained by the Department of Homeland Security (DHS) to be released from custody while going through removal proceedings. The bond is designed to serve as a guarantee that the individual facing potential removal will appear in court.
- If DHS does not offer a bond, or if the amount DHS offers is very high, a judge may decide whether to set a bond or whether to lower an amount set by DHS. To make these determinations, the judge weighs factors such as the type and severity of the crime or immigration violation the detained individual has committed, the likelihood the individual will appear in court, any potential danger the individual poses to the community, employment, and family ties.
- Certain individuals are subject to mandatory detention and are not eligible for a bond. They include those classified as arriving aliens, those who have final orders of removal, those who took actions that threaten national security, or those who have been convicted of or even charged with certain specific crimes such as drug possession or sale, crimes of violence, crimes involving morals, and others.
- An individual may challenge mandatory detention if he or she believes it was imposed in error by requesting a hearing before an immigration judge.
At Wilkes Legal, LLC, we understand how important it is for those who are detained to explore every option to get home, back to work, and back to loved ones. Our attorneys help detained clients understand whether they may be eligible for bond. If they are eligible, we work closely with our client’s family and friends to build the strongest case possible for release, a fair bond amount, and as prompt a hearing as possible.
In many cases, unfavorable decisions from U.S. Citizenship and Immigration Services (USCIS) or from the Immigration Judge may be appealed. An appeal is a request to a higher authority to review a decision below.
- Petitioners filing an appeal must assert and prove that either USCIS or the immigration judge made an error in reaching its decision.
- Appeals generally must be filed within thirty days of the unfavorable decision and must include sufficient explanation as to why the earlier decision was made in error.
- Unfavorable decisions may also be challenged through motions to reconsider and motions to reopen.
The attorneys at Wilkes Legal, LLC are fully prepared to use every available removal defense strategy, and will not hesitate to challenge a wrongful decision through an appeal. We advise our clients when an appeal is appropriate and will strenuously argue our clients’ cases to gain the best chance of reversing an unfavorable decision by USCIS or the immigration judge.
Stays of Removal
An individual with a final order of removal may seek a “stay” to postpone removal while pursuing appeals, motions to reopen or to reverse a court’s decision, or for significant personal circumstances. A “stay” may also be sought when an individual needs additional time to complete preparations for eventual departure from the United States.
- In certain cases, stays are granted automatically to allow time for individuals to challenge court decisions.
- For non-automatic stays, when a petitioner files a motion or an appeal, the court will determine whether a stay should be granted by evaluated the following factors:
- Whether the petitioner is likely to succeed with his or her appeal.
- Whether the individual facing removal will be irreparably harmed if he or she isn't granted a stay.
- Whether issuance of the stay will injure other parties.
- Whether issuance of the stay will serve the public interest.
- Stays for individuals to address personal needs prior to removal are only granted when those needs are acute. Eligible situations include medical needs, such as a sick or elderly relative requiring care, financial obligations, such as a request to help a spouse gain employment when the individual facing removal is the sole earner for a family, and even requests to attend special events such as a child’s graduation.
At Wilkes Legal, LLC, we understand the gravity of a removal order and the life-changing consequences for individuals and their families. We seek every possible opportunity to provide our clients time to challenge removal decisions. If clients lack grounds to challenge removal but have important needs to address in the United States, we work closely with them to build a case to gain the time they need to care for loved ones and attend to other obligations.
Deferred action is when USCIS decides to “defer” removal of an individual, meaning deportation is postponed and the individual may remain in the United States.
- Deferred action is a form of prosecutorial discretion and can be granted only to an applicant who is not in removal proceedings and does not have a final removal order.
- Deferred action is generally granted for humanitarian reasons. An applicant must prove he or she would face hardship if removed. For example, parents of a United States citizen with a serious medical condition might be granted deferred action to care for their child.
- Deferred action status is typically granted for two year periods but can be terminated or renewed at any time. Deferred action does not confer lawful status on an individual and does not provide a path to permanent residence or citizenship.
- Those who are granted deferred action status may also receive employment authorization if they demonstrate an economic necessity for employment.
Deferred action status can give peace of mind to individuals without lawful status who need to attend to ill family members or address other pressing concerns in the United States. Wilkes Legal, LLC can assess whether individuals are good candidates for deferred action status and help them determine whether to proceed with a deferred action application. For our clients who choose to go forward, we focus on explaining their unique situation persuasively with thorough documentation and compelling storytelling.