Removal Proceedings

What Is Removal Proceedings?

Removal proceedings commonly referred to as deportation hearing occurs when the government accuses a non-citizen of violating the United States immigration laws and thus, request an immigration judge to make an order of removal or deportation.

There are several ways a non-citizen may find his/herself in this unfortunate and frustrating situation such as entering the United States without permission or inspection, entering the United States with a valid visa but overstaying the approved duration of stay, found guilty of sham marriage, violating the terms of a green card, criminal convictions, etc.   

The Process of Removal Proceedings

Removal proceedings are conducted by the Department of Homeland Security (DHS). The DHS will first serve the non-citizen with a Notice to Appear (NTA). The NTA will cover information such as the alleged grounds for removal and your right to have an attorney. The government is required under 8 CFR Section 1229a to personally serve the NTA on the non-citizen or serve the non-citizen by mail or through retained counsel. If the government fail to comply with the provision under 8 CFR Section 1229a, a non-citizen can challenge the NTA and ask the immigration judge to dismiss the case without prejudice. The NTA will often have a date of the master calendar hearing, the place, date, and time of the master calendar hearing. 

Master Calendar Hearing

The first hearing is referred to as the master calendar hearing. It is necessary for you to arrive in person at your hearing date or else the immigration judge may enter an absentia removal order. We highly recommend that you consult an experienced attorney to represent you at the master hearing. Before you go for this hearing, you should know which relief you will be seeking before the immigration judge. Our lawyers are very experienced with removal proceedings and are ready to help you. At the end of the master hearing, the judge will set a date for the individual/merit hearing. 

Individual Hearing

The individual hearing also known as the merit hearing offers you with the opportunity to defend yourself against the government charges in the NTA. Usually, the individual hearing is for you to argue the relief you sought at the master hearing. You will need to present testimony and evidence to convince the immigration judge that you qualify for the relief and should be allowed to stay in the United States. Your removal proceedings attorney can help gather evidence and conduct questions for the merit hearings.

The attorneys at The Law Office of Emmanuel Asiriuwa, PLLC represent clients throughout all stages of removal proceedings. We have experience in a variety of circumstances, including those described below.

Adjustment of Status

An adjustment of status (AOS) is an application for immigrants located in the U.S. who want to change their status to that of a Lawful Permanent Resident (LPR). However, AOS can also be used as a defense during removal proceedings. When facing removal proceedings, adjustment of status can be done based on marriage or relationship to a U.S. Citizen or LPR.

If you have a United States citizen spouse, parent, or child, you can have them file a family-based I-130 petition for you and you can request the immigration judge to dismiss the proceedings or administratively close the proceedings to allow USCIS review the I-130 petition. Your immigration lawyer for removal proceedings can assist with AOS paperwork along with defending you through the removal process.

Asylum

People facing removal proceedings who are unable or unwilling to return to their home country or country of origin due to fear of persecution may qualified to apply for asylum. Asylum is applicable for foreign nationals who can demonstrate that they have been or will likely face persecution or prosecution on the grounds of race, religion, nationality, political opinion, or membership in a particular social group.

The asylum application process is different for people who are in the process of being deported than if they were not facing removal proceedings. You must see asylum within one year of your last arrival in the United States unless you qualify for an exception under INA § 208(a)(2)(D). 

Cancellation of Removal

Foreign nationals facing removal proceedings may be able to fight deportation by applying for cancellation of removal. This application can waive certain immigration violations, depending on the circumstances. If applicants successfully secure a cancellation of removal, they are eligible to keep or obtain permanent residency in the United States. 

To apply for cancellation of removal under INA 240A(b) by filing Form 42A or 42B depending on whether you are applying as a LPR or a Non-Lawful Permanent Resident. Cancellation of Removal like most reliefs is a very technical application which requires nuanced legal analysis. You will need an experienced lawyer to assist you with this relief.

Convention Against Torture

Convention Against Torture (CAT) is an extremely rare grant of protection. CAT is intended for foreign nationals who fear torture in their home country or country of origin, either by the government or with the acquiescence of the government.

Foreign nationals who are legally ineligible for withholding of removal and asylum may find CAT as their only option for remaining in the U.S.

INA 237 Fraud Waiver

People who were wrongfully admitted to the United States due to misrepresentation—i.e., those who were in fact inadmissible at time of admission—may be eligible for a waiver of deportability under INA § 237(a)(1)(H). 

Usually, non-citizens in removal proceedings seek this relief when they have been accused of intentionally committed visa fraud to gain admission, but innocent misrepresentations may also be addressed using the 237(a)(1)(H) waiver. Thus, the 237(a)(1)(H) waiver can encompass a person who knowingly immigrated as an unmarried child of an LPR even though they were secretly married at the time, as well as someone who immigrated based on a marriage that, unbeknownst to them, had been legally terminated. The fraud may not come to light—together with subsequent initiation of removal proceedings—until many years later, for instance when the individual applies to naturalize and the fraud is discovered. 

The 237(a)(1)(H) waiver is a discretionary relief granted by the immigration judge to a person who must be the spouse, parent, son, or daughter of a United States citizen or permanent resident; Have been in possession of an immigrant visa or equivalent document; and he/she is otherwise admissible at the time of admission to the United States.

Voluntary Departure

Voluntary departure offers persons in removal proceedings the opportunity of requesting to voluntarily leave the United States on their own volition, rather than being formally deported.

Voluntary departure has several benefits over a removal order, the most prominent of which is that it does not lead to three- and ten-year bars at INA § 212(a)(9)(B) and does not have any stain on the non-citizen immigration records which otherwise could affect their chances of getting a visa or admission to the United States in the future. 

Withholding of Removal

Withholding of removal is intended for foreign nationals who can prove there is a significant chance they will be persecuted in their home country or country of origin upon return. Anyone granted withholding of removal is protected from being deported to the country where they fear persecution.

This option is inferior to asylum in several ways, but certain crimes that disqualify applicants from securing asylum do not make them ineligible from withholding of removal.

Contact an Attorney

If you or your loved ones have been served with a Notice to Appear, call our office for high-quality and affordable representation. We are here to help you fight against the government.