My name is Anne Kennedy. I am a lawyer in Houston, Texas, who practices mostly family law and immigration. In immigration, I specialize in deportation defense. Often my cases involve criminal convictions that have resulted in deportation or removal. This guide presents 5 things that I think anyone facing deportation or removal should know:
1. What is Deportation? What is Removal? Are they the same?
Immigration law is federal law. It is controlled by the Immigration and Nationality Act. There are many different sections under the Act, and they apply to different cateogries of aliens. I.e., if someone is illegal versus legal, they can be treated differently.
Removal Proceedings refer to proceedings in the Executive Office of Immigration Review (EOIR), more commonly known as Immigration Court. It means that the US Government is trying to force the alien to leave the US.
If an alien has never been legal, then he can be placed into Removal proceedings if he is "inadmissible" to the US. Deportation proceedings are a type of Removal proceeding. They apply to aliens that are legally in the US, but the US is trying to revoke their visa.
2. Can I get a Bond?
If an alien is placed into Removal Proceedings, they can be taken into custody by the US Immigation and Customs Enforcement (ICE). They will be detained in a facility maintained by ICE. It is not a prison, but often it is a secured faciity and can seem like one.
If an alien is taken into custody by ICE, you should consult with a lawyer.
The facts of each case are different, but it may be possible to request a bond from either ICE or the Immigration Judge. This would allow the alien to be released and free while his deportation case proceeds in court.
In some cases, an alien is not eligible for a bond. For example, Section 236(c) of the Immigration & Nationality Act denies bond to aliens with "controlled substance offenses." This means ANY drug crime, regardless of whether it was a felony or misdemeanor.
There are some very dishonest attorneys in immigration law, unfortunately. If a loved one is taken into custody by ICE, you need to find an attorney who will be honest about the issue of bond and help you prepare a proper application if your loved one is eligible. Bond is not a right. It is a privilege, and it takes work and preparation to try to get a bond and try to get an afforable bond.
3. How long will this take?
Unfortunately, this is a very difficult question. The reality is that, right now, the Immigration Courts are very backed up. Detained aliens do take priority, but even then, a case can take several months (even a year or more) to complete. Aliens who are out on bond often have to wait more than a year to complete their case.
The facts of each case ARE different. You need to consult with an attorney to try to get a reasonable estimate of how long a deportation case could take.
4. Do I get an Attorney?
Immigration law is considered civil law, rather than criminal. Therefore, the US government provides an alien with a RIGHT to an attorney, but they do not pay for the attorney, like they must in criminal court.
Because immigration law is very tricky, it is strongly recommended that you talk to a lawyer if you have a family member or friend facing deportation.
If an alien is detained, then he should make sure that the Immigration Attorney has a contact for him in the outside world. They will also need your "A number." This is a number that is assigned to the alien and found on the wrist band that is given when an alien is placed into detention.
5. What are my Defenses to Deportation or Removal?
There are several defenses to deportation or removal. They are very fact specific. Depending on the specific facts involved, one or more different defenses may be available to an alien. In general, however, there are 4 common defenses include:
* Refugee-based claims- Aslyum / Withholding of Removal / Convention Against Torture
* Adjustment of Status - getting a green card though a family member that sponsors the alien.
* Cancellation of Removal - getting a green card based on having been in the US for a long time.
* Voluntary Departure - being allowed to leave voluntarily rather than ordered deported or removed.
Along with this guide, I have attached a very good handout from the Heartland Alliance, an immigrants' rights group in Chicago. It discusses the process of deportation or removal for aliens in detention. It also discusses common defenses, like the ones listed above.
Again, each case IS different. It is very important that an alien, or their family, contact a good attorney if taken into custody by ICE.