If threatened with deportation, you may request a voluntary departure, by which you offer to leave the country within a certain time.
Cancellation of Removal and the Stop-Time Rule Persons whose cases are in the Immigration Court may be able to apply for cancellation of removal if either (1) they have resided continuously in the U.S. for 7 years, 5 years as a green card holder, or (2) if they are not a green card holder, they have been continuously physically present in the U.S. for 10 years. Once removal proceedings are instituted by the service of an NTA, the stop-time rule provides these periods of time required to apply for cancellation of removal come to a halt. For example, if an undocumented person is NTA’d after they had been in the U.S. for 9 years and 11 months, they can never reach the 10 years required to apply for cancellation of removal even if their removal proceedings drag on for years. Pereira v. Sessions and the Stop-Time Rule In Pereira v. Sessions, the U.S. Supreme Court ruled that because Mr. Pereira was served with an NTA which did not state the date and time of his hearing before the Judge as required by law, the issuance of a defective NTA did not trigger the stop-time rule. Hence, when he had 10 years of continuous physical presence in the U.S. and was the father of U.S. citizen children, he could apply for cancellation of removal. This worried the U.S. Department of Justice because the government had neglected to state the date and time of the hearing on over 90% of NTAs during the past 20 years, in violation of federal law. With a backlog of over 800,000 cases in the Immigration Cases, this error had the potential to bring the government’s deportation machine to a grinding halt. So, less than 3 months after the ruling in Pereira, the Board of Immigration Appeals (BIA), a part of the U.S. Department of Justice, issued a ruling in Matter of Bermudez-Cota stating that Pereira v. Sessions should be interpreted narrowly. It should apply only to people like Mr. Pereira who were subject to the stop-time rule. Several U.S. Courts of Appeals have since deferred to the BIA’s interpretation of Pereira. Can a Notice of Hearing “Perfect” a Defective NTA? On May 1, 2019, the BIA issued a ruling in Matter of Mendoza-Hernandez which could all but negate the effect of the Supreme Court’s holding in Pereira. The majority of the Board held that even if the NTA was defective, a subsequent Notice of Hearing which stated the date and time of the hearing “perfected” the NTA and triggered the stop-time rule. However, this time, 6 members of the BIA issued a strong dissent which stated as follows: “the plain language of the Act leaves no room for the majority’s conclusion that a subsequent notice of hearing can cure a notice to appear that fails to specify the time and place of the initial removal hearing.” Lopez v. Barr – A Defective NTA Cannot be Perfected Just 3 weeks later, the U.S. Court of Appeals for the 9th Circuit ruled in Lopez v. Barr that the law provides that the NTA must contain the date and time of the hearing, otherwise it is defective and, therefore, does not trigger the stop-time rule. A subsequent Notice of Hearing cannot perfect a defective NTA. The government has the authority to issue a valid NTA, and only a valid NTA can invoke the stop-time rule. The majority decision noted that the BIA reached a conclusion in Matter of Mendoza-Hernandez where, over a vigorous dissent, a closely divided BIA held that a Notice of Hearing that contains time-and-place information perfects a deficient Notice to Appear and triggers the stop-time rule. However, the 9th Circuit declined to defer to that conclusion because: (1) the BIA acknowledged that Pereira could be read to reach a different result, and the courts owe no deference to agency interpretations of Supreme Court opinions; (2) the BIA ignored the plain text of the statute; and (3) the BIA relied on cases that cannot be reconciled with Pereira. What You Should Do Now If you are currently under removal proceedings, take a close look at your Notice to Appear (NTA). If it fails to state the date and time of your hearing, it is clearly defective. If you have been in the U.S. for over 10 years, you may be eligible to apply for cancellation of removal. If you have a green card, you only need 7 years in the U.S. and 5 years with a green card. Remember, a defective NTA does not trigger the stop-time rule. So if you were placed under removal proceedings before you accumulated 10 years of physical presence in the U.S. and now you have been in the U.S. for 10 years, or if you will soon have 10 years presence in the U.S., speak with an immigration attorney to determine whether this is the right time to apply for cancellation of removal or if the Immigration Judge has already ruled in your case, whether you are eligible to file a Motion to Reopen or Reconsider your case. The same may be true if you have already been ordered deported. Remember, just as you may be deported if you fail to follow the law, the government also has an obligation to follow the law.
In this video, the Immigration Professor Robert Perkins discusses asylum as a defense to being deported/removed. Additional videos can be found at http://immigrationprofessor.com
YOU DO NOT HAVE TO OPEN THE DOOR A deportation warrant is different than a search warrant. If ICE comes to your house with a deportation warrant, you do not have to open the door to let them in. They cannot legally go into your house unless you let them in. If they say they have a SEARCH WARRANT, ask them to slide it under the door. A valid SEARCH WARRANT must have your name, address, and must be signed by a judge. If it does not have all these 3 things, you do not have to open the door. REMAIN SILENT You have the right to remain silent. You have the right to refuse to speak to immigration officers or answer any questions. If you are asked where you were born or how you entered the US, you can refuse to answer. If you choose to remain silent, say it out loud, "I choose to remain silent. I want to speak to a lawyer". You can also refuse to show identity documents showing where you are from. If you choose to show your documents, do not show anything that is false and do not lie. YOU HAVE THE RIGHT TO SPEAK TO A LAWYER Although you have the right to speak to a lawyer, the government does not have to provide one to you. Nevertheless, you can still ask for a list of pro bono lawyers if you don't have one. You can also contact your consulate and ask for assistance with a lawyer. You can refuse to sign any documents until you speak to a lawyer. If you choose to sign something, make sure you fully understand exactly what it says and what it means before you sign it. MAKE A PLAN Make a plan with your friends and family in case you are detained by ICE. Keep a list of phone numbers with you. However, assume that phone calls are recorded. Do not talk about your situation over the phone. Have a list of immigration lawyers you trust so you can call them if the need arises. DO NOT RESIST ARREST If you are placed under arrest, comply. Do not resist or try to run away.
Generally Voluntary departure is the lowest level form of relief from removal for individuals with no other avenue of relief. The departure of an alien from the United States without an order of removal. The departure may or may not have been preceded by a hearing before an immigration judge. An alien allowed to voluntarily depart concedes removability. Advantages The advantage of voluntary departure is that no formal removal order will be entered against the individual, which means that such a person may be able to return to the United States sooner. Requirements The requirements for applying for voluntary departure depend on whether you apply for it before or after the master calendar hearing. To apply for voluntary departure before, or at the master calendar hearing, an individual must: Waive and withdraw all other requests for relief; Concede removablility from the United States; Waive appeal of all issues; and Not have been convicted of an aggravated felony and must not be a security risk. Process To apply for voluntary departure at the conclusion of removal proceedings, an individual must: Show that physical presence in the United States for one (1) year prior to the date the Notice to Appear was issued; Show good moral character for five (5) years prior to application for voluntary departure; Present a valid passport or other travel document that shows lawful entry into your country; Show clear and convincing evidence of intent, and financial ability, to leave the United States; and Pay a bond not less than $500 set by the Immigration Judge.
ICE Generally Immigration and Customs Enforcement (ICE) through the Department of Homeland Security's (DHS) has the power to detain an inadmissible or deportable alien and remove/deport the alien if such determination has been made. When an individual has been given a Notice to Appear, often they are required to appear before an ICE officer at their regional headquarters at designated times. Further, after an individual has been ordered deported, they are required to appear before an ICE officer. Do not open the door If ICE comes to your place of residence, you are not required to open the door to them and let them enter the premises. Instead, you can inquire into their reason for coming. Request documentation for basis of entry If the ICE officers continue to insist on entry into your premises, ask to view the warrant that a Judge signed. Do not open the door to view the warrant, but request that the officer slips it through the door or show you through a window. Note that the warrant MUST be signed by a Judge and and ICE Warrant (Form I-200 or Form I-205) does not allow them entry into your home without your consent. If there is no warrant, do not allow entry as you are not legally required to do so. Instead, ask the officer to leave a note at the door with the basis for their visit. If the officer uses force to enter, do not resist their attempts but remain silent and calm. Do not sign anything Unless you have an attorney present or has reviewed the paperwork that the officer is requesting that you sign, do not sign or initial any paperwork. Ask to speak to your attorney in such an instance, particularly if you are detained.
Prior Deportation Order(s) And The I-212 Waiver. INA 212(a)(9)(A): Certain Aliens Previously Removed. Persons who have been ordered removed: a. Through expedited removal or through removal proceedings initiated at the time of the person's arrival in U.S. after April 1, 1997, and who seek admission within 5 years (or 20 years if second or subsequent removal, or at any time if convicted of an aggravated felony) are inadmissible, unless prior permission has been granted. b. After a deportation or removal hearing from the US or who departed while an order of removal was outstanding, and who seek admission within 10 years (or within 20 years if it is after a second or subsequent removal order, or at any time if person convicted of an aggravated felony) from the date of such physical deportation or removal are inadmissible, unless the AG has given consent for readmission. c. The Permanent Bar - applies to aliens that were convicted of an aggravated felony, entered without permission after being removed, or reentered the US after having previously been in the US unlawfully for more than one year. An alien with a permanent bar may seek consent to reapply for admission after having been outside the US for 10 years. c. NOTE: INA 212(a)(9)(A) only applies if the person has physically departed the US or been physically removed subsequent to the issuance of an order. This would mean that those aliens that departed (1) through the relief of Voluntary Departure or (2) after being caught by CBP at the border and being permitted to withdraw their application for admission and return to their country of origin w/o an order of deportation, do not have to apply for permission to re-enter using the I-212 Waiver. I-212 Waiver For Reapplication For Admission. A person who is barred from admission under INA 212(a)(9)(A) may apply for readmission prior to the period of inadmissibility by seeking an I-212 Waiver. Previous case law has named several factors the Service should consider in determining whether an I-212 Waiver should be granted. For example, in Matter of Lee, 17 I&N Dec. 275 (Comm. 1978), criteria were established in determining whether an I-212 Waiver should be granted, which include, but are not limited to: (1) Recency of deportation (2) Length of residence in the U.S. (3) Moral character of the applicant (4) His respect for law and order (5) Evidence of reformation and rehabilitation (6) Family responsibilities of applicant (7) Inadmissibility to the U.S. under other sections of law (8) Hardship involved to himself and others (9) The need for his services in the U.S. (10) The basis for deportation. NOTE: In Absentia Orders. An I-212 waiver is not available to waive a final order of removal for 5 years for a person who has been removed due to inadmissibility/deportability because of an in absentia order. Persons Unlawfully Present In The United States And The I-601 Waiver. Section 212(a)(9)(B)(i) of the INA subjects aliens to either a three-year or ten-year bar to admission, depending on the period of unlawful presence in the United States. A. Three (3) Year Bar. Specifically, ?212(a)(9)(B)(i)(I) bars non-citizens who have been unlawfully present in the United States for more than 180 consecutive days and who voluntarily depart prior to commencement of proceedings from reentering the United States for three years B. Ten (10) Year Bar. ?212(a)(9)(B)(i)(II) prohibits the admission for 10 years of any non-citizen who has been unlawfully present for a year or more consecutively and who has left or been removed from the United States. Unlike the 3-year bar, the 10-year bar applies even if the alien leaves after removal proceedings have commenced. C. I-601 Waiver. If the person is an immigrant and the spouse or son or daughter of a USC or LPR (but not the parent) and he or she can show "extreme hardship" to the spouse or parent (but not his or her child), inadmissibility can be waived using Form I-601. D. Accrual of Unlawful Presence. Section 212(a)(9)(B)(ii) of the Act specifies that "unlawful presence" can accrue during any period under which an alien, other than an LPR, is present in the US without being admitted or paroled, or after the expiration of the period of stay authorized by the Secretary of Homeland Security. As previously mentioned, different rules apply when considering this in the framework of the 3 and 10-year unlawful presence bars. III. The Special Case Of Voluntary Departure. If you were granted an order of VD from an Immigration Judge and left during the time period specified, you do not have to file an I-212 Waiver in order to re-seek admission to the United States. On the other hand, if prior to accepting VD, you have accrued "unlawful presence" you would still be inadmissible for the requisite period of time and thus need an I-601 Waiver. Analysis and Conclusion. A. In General. Generally speaking, once an alien is deported, the United States will bar him from returning on an immigrant visa for 5 years, 10 years, 20 years, or permanently. The length of time affecting the alien depends on the circumstances surrounding his deportation. Like many immigration laws, however, there is an exception. The INA provides that an alien may return to the United States, notwithstanding the bar on re-entry, if the AG has consented to the alien's reapplying for admission. The application for re-entry is Form I-212. Surprisingly, even the alien facing a permanent bar can apply for permission to re-enter using Form I-212, but only after having waited outside the US for 10 years. Furthermore, if the alien is deported for certain reasons, such as for being unlawfully present in the United States or for committing a crime, the I-212 Waiver will not be enough to get him back into the United States. In this case, you must submit BOTH an I-212 Waiver and an I-601 Waiver to a US Embassy or Consulate, and you must also show that being denied entry would cause "extreme hardship" to a qualifying relative. The I-212 Waiver is less substantial since it does not require either a showing of extreme hardship or a qualifying relative, as is required by the I-601. Simply put, the I-212 Waiver forgives the prior removal. The I-601, on the other hand, may also be needed to forgive the reason for the alien's removal, such as unlawful presence or a finding of fraud. An exception exists for those that departed pursuant to an order of VD. These aliens do not need to submit an I-212 Waiver (i.e. to seek permission to re-enter based on forgiveness of prior deportation order), but may have to submit an I-601 Waiver depending on the reason for their deportation. Finally, with regard to the accrual of unlawful presence in conjunction with both a "voluntary" departure and the three and ten-year bars, different rules apply. With the 3-year bar, an alien who accrues at least 180 days but less than one year of unlawful physical presence in the U.S., and who voluntarily departs after commencement of removal proceedings, does not trigger the 3-year unlawful presence bar. On the other hand, an alien who voluntarily departs after having been unlawfully present in the U.S. for more than one year is subject to the ten year bar, regardless of whether removal proceedings have already commenced. (1) I-212 Only Procedure . Immigrants who only require form I-212 will file Form I-212 with the USCIS field office having jurisdiction over the place where removal proceedings were held (in the US). The same field office retains jurisdiction to adjudicate the Form I-212 Waiver Application. I-212 and I-601 Procedure Immigrants who require both an I-212 and an I-601, file Forms I-212 and I-601 concurrently with the US Department of State at the immigrant visa interview at the US Consulate with jurisdiction over the applicant's place of residence (i.e. at the consulate). The consular office must then forward the waiver application forms to the appropriate USCIS officer with jurisdiction over the area within which the consul is located.