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Immigration Detention Removal Guide for Detainees and Their Families 2006

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IMMIGRATION
DETENTION AND
REMOVAL:
A Guide for Detainees and
Their Families

By Bryan Lonegan & the Immigration Law Unit of the Legal Aid Society
(Revised February 2006)

Table of Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Conditions of Detention and Grievances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Notice to Appear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Immigration Court Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Grounds of Removability Based
on Criminal Convictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Step One: Determining Whether You
are Removable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Step Two: Forms of Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Step Three: Determining Whether You Meet
The Standards for Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Voluntary Departure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Unlawful Presence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Appeals to the Board of Immigration Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Motions to Reopen and Reconsider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Federal Court Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Post Order Custody/ Indefinite Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Bars to Re-entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Illegal Re-entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

ii

Introduction
United States immigration laws have changed dramatically over the past ten years. These
changes are most noticeable in the area of detention and deportation or removal of non-citizens
with criminal convictions. Many more crimes make immigrants including lawful permanent
residents (green card holders) subject to mandatory detention and mandatory deportation.
The effect of these changes has been dramatic. In 1995, approximately 5,500 people were
detained on any given day by immigration authorities and some 33,000 were deported. In 2003,
over 20,000 people were detained on any given day and over 77,000 were deported.
For many, detention and the commencement of deportation proceedings (now called removal)
arise suddenly. The legal process leading to removal can be overwhelming. Although everyone
in removal proceedings has the right to be represented by a lawyer, you do not have the right to a
court appointed attorney. You must find your own lawyer. There are very few free lawyers for
these cases so you may have to pay for a lawyer.
This pamphlet is a guide for those who have been detained by immigration authorities and placed
in removal proceedings primarily because of criminal convictions, and their families. This
pamphlet is for information purposes only. This pamphlet does not substitute for the legal
advice of a qualified immigration expert. Immigration law and procedure is a very complex
and rapidly changing field and statements made in this pamphlet may no longer be accurate by
the time you read this.

This booklet gives general information for low-income consumers and advocates. The booklet is not a
substitute for specific legal advice from an immigration expert about your case. If you have any questions
about your legal rights or how to proceed with your case, you should get advice from an immigration expert.
To learn more about the Legal Aid Society or to find a Legal Aid office serving your area, call (212) 577-3300.
There is also a list of resources at the end of the booklet.

1

Detention
Immigrants who are subject to removal are now much more likely to be detained by immigration
authorities. The agency in charge of immigration enforcement was known as the Immigration
and Naturalization Service. It is now known as Immigration and Customs Enforcement (ICE)
which is a bureau within the Department of Homeland Security. This section discusses the most
frequent ways in which people are identified and detained by immigration authorities.
Stopped at the Airport after Traveling Abroad: Upon re-entering the United States, all noncitizens have to go through immigration inspection. Many have traveled to their home countries
in the past without any problem, but the government now regularly updates its computers at
airport inspection. The computers have access to criminal records and prior orders of
deportation. There is no statute of limitations under the immigration laws and you may be
stopped for convictions that occurred many years ago. If you have a criminal conviction you
should consult a reputable immigration practitioner before traveling abroad to make sure that you
will be able to re-enter the United States without a problem.
Interviewed While in Jail: The ICE has officers at most New York City jails and state prisons.
You will likely be interviewed by a ICE agent and will be asked about your immigration status.
You may not even realize that ICE was interviewing you. You will be placed into removal
proceedings if there is a basis under the immigration laws to do so. The ICE officer will first
place a “detainer” on you. Once you have completed your time in prison or jail, you will be
transferred to ICE custody. Federal law says that state and local law enforcement authorities may
only hold persons on immigration detainers for 48 hours after the completion of their jail time.
This means that once you have completed your jail time, the immigration officials must take you
into custody within two days. If they do not, you should contact your criminal defense lawyer and
ask him or her to file a writ of habeas corpus with the state court demanding your release.
Immigration Applications: Most, if not all, applications to the United States Citizenship and
Immigration Services (USCIS), another agency within the Department of Homeland Security,
now require security clearances and/or fingerprints as part of the application process. This
includes applications for citizenship, renewal of green cards, employment authorization
documents and even “status inquiries” to USCIS. USCIS now uses very sophisticated databases
for their security clearances which identify old criminal convictions from anywhere in the U.S.
When fingerprints are taken, USCIS gets a list of all your arrests and convictions. If you have a
conviction that makes you removable, your application is likely to be denied and you very likely
will be placed in removal proceedings.
Prior Orders of Deportation: ICE has a campaign to pick up persons living in the United States
who have orders of deportation. Some people may not even know that they have been ordered
deported or they may think that because the deportation order was entered many years ago it is no
longer a problem. If you were ever in immigration court proceedings before but did not return to
court, you may have been ordered deported in your absence. Persons with prior orders of
deportation have been entered onto a national “absconder” list. Immigration authorities have
2

been working together with local law enforcement to pick up “absconders.” This can happen
anywhere including at the border or even if you are stopped for a traffic violation.
Detention Facilities: ICE operates or has contracts with detention facilities all over the country.
Some facilities are used exclusively for people seeking political asylum. Most detainees are held
in local jails that are paid a fee by the government for holding detainees. ICE has the authority to
detain you in any facility it wishes, even if it is in different state than your home.

Conditions of Detention and Grievances
ICE has adopted 38 standards for the immigration detention system covering issues including but
not limited to access to counsel, religious services, medical care, food, visitation, and telephone
access, which are to be observed by any facility housing immigration detainees. These standards,
however, are not binding regulations. A copy of these standards are supposed to be available to
you at the facility where you are detained.
Making a Grievance (The following information on grievance procedures is adapted from
recommendations of the American Bar Association Committee on Immigration available at
http://www.abanet.org/immigprobono/grievance.html
According to the detention standards, a grievance must be made to the Officer-In-Charge at the
facility within five days of the event. You may make your grievance orally, but it is always better
to do so in writing. You should send a copy of your grievance to the ICE Field Office Director.
ICE has a particular Detainee Grievance Form that you can use, but it is possible that your
facility has its own form.
In making a grievance you should give all relevant details and be specific: When and where did
the event or problem happen? Give the time, date, and location of the event. Who was involved?
Give the names of all actors and witnesses, and include their alien registration numbers (“A
numbers”) and countries of origin if you know. Give the names and positions of the officials
involved, and if you do not know them, give physical descriptions (e.g. rank, height, weight, hair
color, clothes, uniform color). What happened? Describe in detail exactly what happened and the
physical and mental impact it had on you. If you were hurt, did you receive any medical care?
What was the doctor’s diagnosis? If you have been hurt, ask officials (or contact an attorney) to
take pictures of your injury.
The Officer-In-Charge must give you a written decision on your complaint within five working
days. If you do not accept the decision of the Officer-In-Charge, you may appeal to the Detainee
Grievance Committee which must provide you with a written response to the complaint within
five working days. You can appear in person before the Detainee Grievance Committee to
present your own evidence including witnesses, answer questions, and respond to conflicting
evidence or testimony. If you do not accept the decision of the Detainee Grievance Committee,
you may appeal again to the Officer-In-Charge who must issue a decision within five working
days and explain the reasons for making the decision. The Officer-In-Charge’s decision is final
3

and cannot be appealed.
Emergency Grievances:
An emergency grievance involves an immediate threat to your safety and welfare. You may
present your emergency grievance directly to the ICE Field Office Director.
Administrative Complaints:
For complaints involving misconduct or abuse by an ICE, border patrol, or a jail official
involving a violation of a constitutional, civil, or statutory right, or issues of common courtesy,
file your complaint with:
Department of Homeland Security
Attn: Office of Inspector General
Washington, DC 20528
And/or with:
Department of Homeland Security
Joint Intake Center, ICE/CBP
P.O. Box 14475
1200 Pennsylvania Avenue, NW
Washington, DC 20044
There are many federal laws which make discrimination illegal. Discrimination means treating
one person differently from another because of a certain characteristic. If you have suffered from
discrimination because of your race, color, sex, religion, national origin, age, or disability, you
can send your complaint to the Department of Homeland Security’s Office of Civil Rights and
Civil Liberties (OCRCL). Send your complaint even if you are unsure about whether your
complaint qualifies as discrimination; the OCRCL will direct your complaint to the
appropriate office.
Department of Homeland Security
Mail Stop #0800
Office for Civil Rights and Civil Liberties
Washington, DC 20528

4

Bond
Not all immigrants are eligible for release from detention. Depending on your immigration status
and/or criminal record, you may be subject to mandatory detention. If you are not eligible for
bond, you will have to fight your removal from inside immigration detention.
I. MANDATORY DETENTION: The Immigration and Nationality Act and federal
regulations state that the government must take you into custody and hold you without bond if
you have been convicted of certain removable offenses and released from jail after October 8,
1998. If you were convicted of a removable offense but not sentenced to jail (for example if you
were sentenced to community service, probation, or a conditional discharge) you may still be
eligible for bond. If you think that you are entitled to bond, you must write to the immigration
court and ask for a “Joseph Hearing” where you can try to convince the judge that the mandatory
detention law does not apply to you.
Grounds for Mandatory Detention of Lawful Permanent Residents in the United States,
Persons Who Have Overstayed Their Visa, or Persons Who Have Been Lawfully Admitted
into the United States: If you are a lawful permanent resident or overstayed your visa or were
admitted into the United States in some manner, you may be subject to mandatory detention if
you were released from jail after October 8, 1998, and convicted of any of the following crimes
(these are explained in more detail in the section entitled Grounds of Removability Based on
Criminal Convictions):
*

Two Crimes Involving Moral Turpitude (CIMT) at any time after your admission in the
United States;

*

An aggravated felony;

*

A controlled substance offense;

*

A Firearms offense.

Grounds for Mandatory Detention for Lawful Permanent Residents Returning From a
Trip Abroad, Persons Who Entered Without Inspection (EWI), or Persons Seeking
Admission into the United States: If you are a lawful permanent resident returning from a trip
outside the United States or entered without inspection or are seeking admission into the United
States, you may be subject to mandatory detention if you were released from jail after October 8,
1998, and convicted of any of the following crimes. (These grounds are explained in more detail
in the section entitled Grounds of Removability Based on Criminal Convictions):
*

One CIMT (which may be waived as a petty offense if you have no prior criminal history,
the offense was not punishable by more than one year in jail and you did not serve more
than six months in jail);
5

*

Controlled substance offense;

*

Drug trafficking offense;

*

Two or more offenses with aggregate sentence of 5 years incarceration;

*

Prostitution;

*

Domestic violence or violation of protection order.

II. PROCEDURES FOR SETTING BOND: If you are not subject to mandatory detention
and you are not an arriving alien, then you are eligible for bond.
ICE Will Set Initial Bond: If you are detained but eligible for bond, the government will set an
initial bond amount. If you post this bond, you will be released. If you cannot afford the bond,
you can write to the immigration court and ask for a bond re-determination hearing.
Bond Hearing: To set the amount of bond, the judge will look at two factors: (i) are you are a
flight risk or somebody who would not come back to court if released, and (ii) are you a danger
to the community? The judge will look at things about your life which show that you are
responsible. It is very important that you present as much evidence as possible about your life.
Some of the things that are important to the judge are:
*

Relatives in Court: The fact that you have a family that cares enough about you to come
to court means a lot to the judge;

*

Letters of Support: Get letters from relatives who cannot come to court, neighbors,
friends, co-workers, and clergy that state that they know you to be a good and reliable
person. These letters should be notarized;

*

Apartment Lease or Mortgage showing you have a place to live if you are released;

*

Letters from Employers and Pay Stubs showing you have a regular job or have a job
offer and are reliable;

*

Marriage Certificate showing you have family to live with and care for (but only if your
spouse is a United States citizen or lawful permanent resident);

*

Children’s Birth Certificates (but only if children are United States citizens or lawful
permanent residents);

*

Attendance in Rehabilitation Programs showing that you are trying to fix your drug,
drinking, or anger problems;
6

*

Warrant History: Have you ever failed to go to court on any of your criminal cases so
that a warrant was issued? If not, you can show the judge that you were reliable when
you had to go to court in the past;

*

School Records including GED;

*

Tax Records: Judges expect that people who have lived and worked in the United States
have complied with all tax laws;

*

Eligibility for Relief: If you have no way to remain in the United States, the judge is
likely to set a higher bond. But if you are eligible for relief the judge will take that into
consideration. (See Forms of Relief beginning at page 12);

Amount of the Bond: The immigration judge is not allowed to set a bond below $1,500 but can
order your release “on your own recognizance.” This means the judge can let you go without any
bond. The bond may be paid in cash or you may use a bail bondsman. The bondsman will post
the bail on your behalf, but will charge you a non-refundable fee and will require that you pay a
certain percentage of the bond amount. If your family pays the bond directly to the government,
the bond money will be returned to your family only when your court case is completed and only
if you have complied with the court’s order, even if that order is to leave the country.
Bond Appeal: If you disagree with the judge’s determination of your bond request, you may file
a bond appeal with the Board of Immigration Appeals (BIA). When the judge decides your
appeal, she will give you a form known as a Notice of Appeal. You must complete and file the
Notice of Appeal with the BIA within 30 days of the judge’s decision. The BIA may take several
months to decide your bond appeal and the immigration judge may order you removed before
you receive a decision from the BIA. You will be held in detention while your appeal is being
decided.
The Government May Also Appeal the judge’s decision if the government lawyer believes that
the judge should not have set bond or set the bond too low. The government also has a limited
time to file the appeal. If they do not file an appeal, the judge’s bond decision becomes final.
Again, the immigration judge may decide to order you deported before you receive a decision
from the BIA on the question of your bond.

Notice To Appear
The Notice to Appear or NTA is the document the government gives you and the court to
explain why you should be removed from the United States. The NTA starts the case against you.
ICE must give you the NTA within 72 hours of your detention. The NTA is divided into two
parts. The first part which is labeled “ALLEGATIONS” has your name, the country you are
from, and the date and manner you entered the United States. It also gives the factual basis or
reason for your removal. The second part is called “CHARGES.” It lists the sections of the law
under which you may be removed. You must examine this document carefully and check for
7

accuracy. For example, does it have the proper date that you entered the United States? This
may affect your ability to fight your removal. Does it correctly state your criminal convictions?
A mistake in this section may make the difference between being held in mandatory detention or
receiving bond.

Immigration Court Proceedings
Proceedings Can Be Anywhere: If you are detained, there is no guarantee that you will be
detained in the state where you live or that your case will be heard in the state where you live.
ICE has the authority to detain you anywhere it wishes.
Change of Venue: The immigration court may transfer your case to an immigration court near
your home if you ask it do so. If you are detained, however, it is much more difficult to obtain a
change in venue. The factors the judge will consider are:
*

Nature of the evidence and its importance to your claim: If you are eligible for some
form of relief from removal and the evidence you need to support your claim such as
witnesses or official records are in another state and cannot otherwise be obtained by you,
you will have a better chance of having your case transferred;

*

The number of prior continuances in the case. The earlier you request a change in
venue, the better your chance. If there have already been a number of court dates the
court is less likely to grant your request.

MASTER CALENDAR HEARINGS: Your first date to see the immigration judge is usually
scheduled within one or two weeks after you receive your NTA. It may be longer. Your first
appearances before an immigration judge are known as the Master Calendar Hearings. These
court appearances are usually very brief and are used by the court to take the pleadings, to decide
if you are removable, and to identify the relief from removal you are eligible to apply for. A
judge will have many cases scheduled for her master calendar day. If you make an application
for relief such as cancellation of removal, adjustment of status, or asylum your case will be
adjourned for a full hearing to decide whether you are eligible for the relief. This is called the
Individual Hearing. The judge will schedule only a few cases a day for individual hearings.
Adjournments to Find a Lawyer: At your first court appearance the court will ask if you have
an attorney or would like time to obtain one. If you wish to fight your removal then you should
ask the court for time to get an attorney. The court will give you an adjournment to find a
lawyer. If you cannot find one by the next date, the court may go ahead with your case.
Free Lawyers: While all detainees have the right to be represented by counsel, in immigration
court, you are not entitled to have an attorney assigned to you at the government’s expense.
There are a few organizations that provide free or low cost representation to detainees. The court
will provide you with a list of such organizations when you ask for time to find a lawyer.
8

PLEADINGS: At the beginning of your case the judge will “take the pleadings.” The judge
will review the NTA with you. The judge will ask you if the facts contained in the NTA are true,
if you admit that you are removable, and whether you will be applying for any form of relief from
removal. The government, however, must first prove the following:
*

Government Must Prove Alienage: The government must prove that you are an alien,
meaning that you are not a United States citizen. If you are a lawful permanent resident,
they can do this by showing the judge a copy of your visa “face sheet” - the document
which you received when you first entered into the United States. If you entered without
inspection, they may rely on any statements you made or any other evidence showing that
you were not lawfully admitted into the United States. If the government cannot prove
that you are an alien, then the case must be terminated;

*

Government Must Prove Removability: If you are a lawful permanent resident or were
otherwise lawfully admitted into the United States, the government must also prove by
clear and convincing evidence that you are removable. They must show that you have
done something to violate immigration law which permits the government to send you
back to your country of origin. For example, if the NTA states that you are removable due
to a conviction for a crime, the government will need to produce a certificate of
disposition or some other court record to verify that you were convicted of the crime.
The government will also have to show that the crime you were convicted of is one that
allows the government to deport you. In deciding whether you are removable because of
a criminal conviction, the judge can only consider the type of crime you were convicted
of and cannot consider what actually happened in your criminal case

If you want to fight your case, do not admit these allegations. Ask the court to make the
government prove its case. Challenging the government’s claim that you are removable is legally
complicated. You should consult with an immigration specialist who may help you prove that
the crime you were convicted of is not a removable offense.
Contesting a Factual Allegation: If any of the facts in the NTA are not true, you should deny
the charges or allegations and demand that the government provide proof of the charges or
allegations. For example, if the NTA alleges that you were convicted of a certain crime but you
were convicted of a different crime, you may be eligible to request a waiver or may not even be
removable.
What is a Conviction? A conviction is a finding of guilt with some form of punishment. You
may be convicted of a crime by pleading guilty or by a guilty verdict after a trial. Convictions
include no contest pleas or deferred adjudications when a person pleads guilty but later
withdraws their plea after completing a treatment program. Adjournments in Contemplation of
Dismissal (ACD) are not convictions because there was never a finding of guilt.
Citizenship: Some people may be citizens without even knowing it. This is particularly true if
your parents became citizens while you were in the United States and under the age of 18, or you
9

were born outside the United States and your parents were United States citizens. A person who
qualifies as a citizen under these circumstances is said to derive or acquire citizenship from their
parents. This is a very complicated area of the law, however, and whether you derived or
acquired citizenship will depend on various factors such as the particular law in effect at the time
you were born, when your parents became citizens, whether your parents were married, or
divorced, and who had legal custody of you. If you believe that you may be a citizen, you should
alert the judge so that she may investigate it.

Grounds of Removability Based on Criminal Convictions
Most non-citizens are placed in removal proceedings because they do not have legal immigration
status (entered the United States without inspection, or overstayed their visa) or because they
violated immigration rules. In this booklet we will focus on the ways in which non-citizens are
put into removal proceedings as a result of criminal convictions.
In general, in removal proceedings there is a three-step inquiry. First, the judge will decide if you
are removable because you have triggered one of the grounds of inadmissibility or deportability
in immigration law. Next, the judge will decide if there is “relief” available to you. There are
many different types of relief from removability including asylum, adjustment of status, and
“waivers” that would allow you to remain in the U.S. despite your removability. Finally, the
judge will decide whether you have met the legal and discretionary standards to be given that
form of relief.

Step One: Determining Whether You Are Removable
DEPORTABILITY V. INADMISSIBILITY: Under the Immigration and Nationality Act,
non-citizens can be removed from the United States if they violate either the statutory grounds of
“inadmissibility” or “deportability.” The “inadmissibility” grounds apply to people who (1)
make an initial application to enter the United States lawfully; (2) travel abroad as lawful
permanent residents and get stopped by immigration on trying to reenter the country, or (3) are in
the United States and make an application for legal status. The “deportability” grounds apply to
people who have been legally admitted into the US as lawful permanent residents or visitors.
I. CRIMINAL GROUNDS OF DEPORTABILITY: You may be subject to removal on
deportability grounds if you have been lawfully admitted into the United States and have been
convicted of:
*

An aggravated felony;

*

A crime involving moral turpitude (CIMT) committed within five years of the date of
your admission and for which a sentence of one year or longer may be imposed;

*

Two CIMTs at any time after your admission;
10

*

A controlled substance offense (other than a single offense involving possession for one’s
own use of thirty grams of less of marijuana);

*

Certain firearms offenses;

*

A crime of domestic violence (including violation of an order of protection).

There are also other grounds of deportability not mentioned above found in section 237 of the
Immigration and Nationality Act. Each of the grounds of deportability listed above is discussed
further below.
Aggravated Felonies: A conviction for an aggravated felony, or an attempt or a
conspiracy to commit an act defined as an aggravated felony, has the most serious
immigration consequences of any kind of conviction. An aggravated felony conviction
will bar you from most forms of relief and will likely make you subject to mandatory
removal.
The term “aggravated felony” as used here is an immigration term and has no connection
to the definition of a felony in state criminal law. A crime can be considered an
aggravated felony even if it is a misdemeanor under state penal law. Whether a felony
conviction under state law is an aggravated felony depends upon whether the federal law
treats the crime as a felony. Consequently, you may be able to challenge the
government’s allegation that you were convicted of an aggravated felony if the state
definition of the crime differs from the federal definition of the crime. Many crimes
become aggravated felonies if the sentence is for one year or more, even if the sentence is
suspended. Other crimes may be aggravated felonies no matter how long the sentenced
imposed.
Types of aggravated felonies
*

Crimes of violence for which the penalty imposed are at least one year (felony or
misdemeanor). These are defined as (a) an offense that has as an element the use,
attempted use, or threatened use of physical force against a person or property of
another, or (b) any other offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or property of another may
be used in the course of committing the offense;

*

Murder;

*

Drug Trafficking: The law is currently in a state of flux. It is clear that a felony
drug sale is an aggravated felony and that a first time misdemeanor possession is
not. However, anything in between has not been settled at the time of this writing;

*

Theft or Burglary for which the penalty imposed is imprisonment for at least one
11

year (felony or misdemeanor). Theft and burglary have been defined by federal
courts with reference to the federal definition of theft. It is sometimes possible to
argue that a state offense does not fall within the generic definition of theft or
burglary;
*

Any Firearms Trafficking Offense (e.g., sale, distribution);

*

Failure to Appear for Service of Sentence if the underlying offense is
punishable for a term of five years, or more;

*

A Conviction Related to Failure to Appear Before a Court on a Felony
Charge for which a sentence of two years of imprisonment or more may be
imposed;

*

Rape;

*

Sexual Abuse of a Minor (felony or class A misdemeanor) - State sex offenses
involving a minor are not “sexual abuse of a minor” if they do not contain the
same elements as the federal offense of sexual abuse of a minor;

*

Crime of Fraud or Deceit, in which the Loss to the Victim Exceeds $10,000 An offense is not a “fraud or deceit” offense unless fraud or deceit is a necessary
or proven element of the crime;

*

Prostitution Business - crimes related to owning, controlling, managing or
supervising a prostitution business;

*

Crime Related to Commercial Bribery, counterfeiting, forgery, or trafficking in
cars with altered vehicle identification numbers (VIN), where the penalty imposed
is imprisonment for one year or more (felony or misdemeanor);

*

Crime Relating to Obstruction of Justice, Perjury or Subornation of Perjury,
or Bribery of a Witness, where the penalty imposed is imprisonment for one year
or more (felony or misdemeanor);

*

Failure to Appear in Criminal Court for Felony Charge That Could Result in
a Sentence of Two or More Years.

Crimes Involving Moral Turpitude (CIMT): Defined as crimes which are “inherently
base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed
between persons or to society in general.” In general, crimes of moral turpitude fall into
the following categories: i) crimes in which an intent to steal or defraud is an element; ii)
crimes in which bodily harm is caused or threatened, by an intentional or willful act; iii)
crimes in which serious bodily harm is caused or threatened by a reckless act; or iv) sex
12

offenses. They include -- but are not limited to -- aggravated assault, sexual abuse (even if
it did not involve a minor), kidnapping, arson, malicious destruction of property, criminal
possession of stolen property, bribery, forgery, any crime involving either theft (such as
robbery, burglary or larceny) or fraud (such as welfare fraud).
Controlled Substances Offenses: This category includes any conviction for sale of a
controlled substance, possession of a controlled substance with intent to sell, or simple
possession, with the exception of a single conviction for possession of less than 30 grams
of marijuana. Drug abuse or addiction (whether resulting in a criminal conviction or not)
also renders a non-citizen removable.
Firearms: As previously noted, any firearms trafficking offense is an aggravated felony,
subjecting a non-citizen to mandatory removal. However, any conviction for mere
possession of a firearm, including a class a misdemeanor, renders a non-citizen
removable. Note that this ground of removability refers to firearms and not weapons in
general. In some instances, a challenge can be made that you cannot be removed because
the particular statute under which you were convicted is “divisible” because it includes
other types of weapons. The government must then prove with the record of conviction
that the weapon was a firearm and not any other type of weapon.
Domestic Violence & Stalking: Convictions in this category include crimes involving
domestic violence, stalking, or child abuse, neglect or abandonment. You may be able to
challenge this charge if the government cannot prove there was a relationship between
you and the victim that falls within the definition in the immigration law.
Violation of Orders of Protection: Any conviction that constitutes an admission to
violating an Order of Protection renders an alien removable if committed at any time after
entry, no matter what the actual sentence is.
II. CRIMINAL GROUNDS OF INADMISSIBILITY: You may be subject to removal on
inadmissibility grounds if you entered without inspection (EWI) and/or were convicted of certain
crimes or admit to having committed these crimes:
*

A controlled substance offense;

*

A crime involving moral turpitude (CIMT) subject to the petty offense exception.

Each of these grounds of inadmissibility is discussed further below.
Controlled Substances Offenses: Note that unlike the controlled substance ground of
deportability there is no exception for a single conviction for possession of less than 30
grams of marijuana.
Crimes Involving Moral Turpitude: Defined as crimes which are “inherently base, vile,
13

or depraved, and contrary to the accepted rules of morality and the duties owed between
persons or to society in general.” In general, crimes of moral turpitude fall into the
following categories: i) crimes in which an intent to steal or defraud is an element; ii)
crimes in which bodily harm is caused or threatened, by an intentional or willful act; iii)
crimes in which serious bodily harm is caused or threatened by a reckless act; or iv) sex
offenses. They include -- but are not limited to -- aggravated assault, sexual abuse (not
involving a minor), kidnapping, arson, malicious destruction of property, criminal
possession of stolen property, bribery, forgery, any crime involving either theft (such as
robbery, burglary or larceny) or fraud (such as welfare fraud). There are two exceptions to
this ground of removal:
*

Petty Offense Exception: There is an exception that bars removability based on a
CIMT if you have been convicted of only one CIMT. In order to fall within this
exception the maximum penalty possible for the crime cannot exceed one year in
prison and you were not sentenced to a term of imprisonment of more than 6
months;

*

Crime Committed When You Were under 18. Another exception is if you
were convicted of only one CIMT which you committed when you were under 18
years old, and the crime was committed more than 5 years before your application
for admission

Step Two: Forms of Relief
Again, you may want to challenge the government’s claim that you are removable. With legal
help, you may be able to show that the offense you committed is not a basis for removal. In
deciding whether the offense you were convicted of is a removable offense, the judge is allowed
only to look at the type of crime and not what actually happened in your criminal case.
Once the court has determined that you are removable, you may ask the court to determine
whether you are eligible for relief from removal. There are different types of relief available
depending on various factors.
The following discussion of forms of relief provides only general information. More specific and
detailed explanations on how to apply for these forms of relief can be found at the Florence
Immigrant Rights Project web site at www.lirs.org.
Cancellation of Removal for Lawful Permanent Residents: If you are a lawful permanent
resident (LPR) in removal proceedings, you may apply for cancellation of removal if you meet
the following criteria:
*

You must have continuously resided in United States for 7 years after you were admitted
and before you were served the Notice to Appear or committed an offense that subjects
you to removal on inadmissibility grounds;
14

*

You must have been an LPR for 5 yrs;

*

You cannot have a conviction for an aggravated felony;

*

You cannot have previously been granted cancellation of removal or waiver under 212(c)
of the Immigration and Nationality Act (INA);

*

You cannot be a terrorist, crewman, or exchange visitor;

Once you satisfy these requirements, the judge must decide if the positive factors in your life
outweigh the negative factors before s/he can grant relief.
212(c) waiver: Prior to 1996, this was the most common form of relief from deportation or
inadmissibility available to LPRs who had been convicted of a crime. In 1996, Congress
eliminated this form of relief and replaced it with cancellation of removal discussed above. You
may still qualify for 212(c) waiver if you meet the following criteria:
*

You are an LPR and pled guilty to a crime (including an aggravated felony but not
including a firearm offense) before 4/24/96;

*

You have lived in the US for 7 years;

*

The positive factors in your life outweigh the negative ones;

Note that if you served a term of imprisonment of 5 years or more for one or more aggravated
felony convictions, you may be ineligible for 212(c) relief.
Cancellation of Removal for Non-LPRs: If you are a refugee, asylee, or an unauthorized and
undocumented non-citizen, you may be eligible for cancellation of removal for non-LPRs, if you
meet the following criteria:
*

You must have had continuous physical presence in the United States for 10 years;

*

The time counted towards the ten years stops when either (i) ICE serves you the NTA, or
(ii) when you have committed a criminal offense which makes you removable under INA
Section 212(a)(2).
In other words, if the government serves an NTA on you or you commit an offense under
INA 212(a) (2) within ten years of your arrival in the U.S., you will be ineligible for this
form of cancellation;

*

You must show that you have never been absent from the US for more than 90 days on
one trip or more than 180 days in combined trips;
15

*

You must show that you were a person of “Good Moral Character” during the ten years
prior to your application;

*

You must also have a United States citizen or lawful permanent resident spouse, child or
parent and you must show that your departure from the United States would cause any
family members exceptional and extremely unusual hardship.

Adjustment of Status: Under certain very limited circumstances, a non-citizen with a criminal
conviction may avoid removal by adjusting his/her status to a lawful permanent resident. This
can work even if the person may already be a LPR. To adjust your status, you will need a relative
or employer to petition for a visa on your behalf. Visas are distributed according to certain
preference categories based upon the family relationship. The spouse or child of a USC or the
parents of a USC over 21 years old are immediately eligible for a visa and are not subject to the
waiting periods for those in preference categories. The visa preference categories are listed
below:
preference categories
First
Single (+21) child of USC
2A
Spouse, unmarried (-21) child of LPR
2B
Unmarried child (+21) of LPR
3
Married child of USC
Note: Only LPRs or people who entered with a visa and who overstayed or certain Cuban
parolees are eligible for this form of relief. At this time, there is no way for a person who entered
illegally to adjust their status except for those who on whose behalf an I-130 or I-140 visa
petition was filed before April 30, 2001.
212(h) Waiver: If your criminal conviction falls under the CIMT or prostitution ground of
inadmissibility or if you have a single marijuana possession conviction involving less than 30
gms of marijuana, you may be eligible for a waiver pursuant to Section 212(h) of the INA. To be
eligible for this waiver you must meet the following criteria:
*

You have not been convicted of a drug offense (except for one time simple possession of
30 gms of marihuana);

*

If you committed your crime more than 15 years ago of your crime was prostitution, you
will need to show that you are rehabilitated;

*

If your crime was committed less than 15 years ago and it did not involve prostitution,
you will need to show that you have a spouse, parent, son or daughter who is a United
States Citizen or a lawful permanent resident, and denial of your admission would result
in extreme hardship to your qualifying relative;

*

If you are an LPR you must have lived in the United States for 7 years before your
16

immigration case started;
You cannot apply for a 212(h) waiver if you are a lawful permanent resident and have been
convicted of an aggravated felony. Note, however, that this provision applies only to LPRs. A
person who overstayed his or her visa or parolees may still apply for adjustment of status with a
212(h) waiver.
Asylum: Asylum is a form of relief given to persons who have a “well founded fear” of returning
to their country for certain reasons. The criteria for asylum are:
*

That you are unable or unwilling to return to your country because you have been
persecuted there or you have a well founded fear of persecution on account of your race,
religion, nationality, membership in a particular social group, or political opinion;

*

Generally, you must apply for asylum within one year of your last arrival in the U.S.
(there are limited exceptions);

*

You cannot have been convicted of a “particularly serious crime.” A particularly serious
crime, like an aggravated felony, is a term used in immigration law. Generally, it
includes crimes such as robbery, rape, or serious assaults. The government maintains that
any drug trafficking crime is presumptively a particularly serious crime. This means that
if you have been convicted of drug trafficking, you will need to prove that under the
circumstances of your case, the crime was not particularly serious;

*

You must not have been convicted of an aggravated felony;

*

You merit asylum in the exercise of discretion.

Withholding: Withholding of removal is very similar to asylum but much harder to get.
Whereas asylum requires that you show a possibility of persecution, withholding requires that
you show a probability of persecution. When the judge grants withholding of removal, he
actually orders your removal but then orders that the removal be withheld until such time that it
is safe for you to return to your country of citizenship.
ICE may continue to detain you even after withholding of removal is granted if it determines that
you are a flight risk or a danger to the community. If you are released from custody, you will be
paroled and required to report to ICE periodically. You will also be allowed to work legally
within the United States. The criteria for withholding of removal are:
*

Your life or freedom would be threatened because of race, religion, nationality,
membership in a particular social group, or political opinion;

*

You have not been convicted of a particularly serious crime (see above). A conviction for
an aggravated felony in which you were sentenced to an aggregate term of five years in
17

prison is automatically considered a particularly serious crime. If you were given less
then a five year sentence, the government still has the discretion to classify the conviction
as a particularly serious crime.
Convention Against Torture (CAT): Pursuant to an international treaty known as the
Convention Against Torture, the United States is prohibited from returning anyone to a country
where they may be subject to torture. In order to obtain this form of relief you must show that
you would suffer severe pain and suffering, intentionally inflicted for an illicit purpose by or at
the instigation of, or with the acquiescence of, a public official who has custody and control over
you, and not arising out of a lawful sanction. You may qualify for “deferral” under CAT no
matter what your criminal record.

Miscellaneous Forms of Relief
Cuban Refugee Adjustment and the Nicaraguan Adjustment and Central American Relief
Act: Allows people from certain countries to adjust their status to a LPR following a period of
time after their entry into the United States.
Temporary Protected Status (TPS): The President of the United States occasionally declares
that citizens of certain countries will be allowed to live and work in the United States for a
specified period of time. This occurs when a country is at war or a country has experienced a
severe natural disaster such as an earthquake. Persons eligible for Temporary Protected Status
must meet the deadlines for applications. If approved, you can work only while the designation
is in place. People who are inadmissible due to a criminal conviction, or who have been
convicted of certain crimes, may not be eligible for TPS.
Deferred Enforced Departure: This is very similar to Temporary Protected Status.

Step Three: Determining Whether You Meet the Standards
for Relief
Applications: Once the judge finds that you are eligible to apply for a form of relief, she will
allow you time to prepare the proper applications. There are different forms for each of the
different types of relief. These forms ask very specific questions about things such as where you
have lived and worked, your family, your arrest and conviction record, as well as many other
things. The judge will give you the proper form. Most require that you pay a fee. If you do not
have the money, ask for a fee waiver by explaining in writing how much money you have and
why you cannot afford to pay the fee. You must be very careful when you fill out your
applications for relief. You will be required to swear to their contents. If the judge finds that you
did not answer a question truthfully, she may deny you the relief requested. After you have
submitted your application, the judge will grant you additional time to collect and prepare your
evidence in support of your application.
18

THE INDIVIDUAL HEARING: At the hearing, you will have to prove that you meet the
requirements for the relief you have applied for. You will have to submit documents and present
witnesses to prove your claims. The type of evidence you will need to present to the judge will
depend on the type of relief you are seeking.
If you ask for asylum, withholding, or relief under the Convention Against Torture, you will need
to present evidence about conditions in your country of origin and why you fear persecution or
torture. This evidence may include:
*

Country Reports on human rights practices in your country prepared by the United
States Department of State and/or human rights organizations such as Amnesty
International or Human Rights Watch;

*

Newspaper and Magazine Articles describing instances of persecution;

*

Testimony or Affidavits from experts on your country such as professors or diplomats,
or of other people from your country who have suffered persecution.

If you ask for a 212(c) waiver, cancellation of removal or adjustment of status, you will need to
present information about your past and present life in the United States and the lives of your
family members. The judge must then balance the good and bad factors in your case and makes a
discretionary decision as to whether you deserve to remain in the United States. This means that
even though you qualified to apply for a waiver, the judge can still deny the waiver if she feels
that you do not deserve it.
If you ask for a 212(h) waiver or adjustment of status you will also need to show that your
removal would be an extreme and unusual hardship to your United States Citizen or lawful
permanent resident spouse or children. The law regarding extreme and unusual hardship is
complex. In general, means more than what one would expect from being separated from a
family member.
In making that decision the judge will look at positive and negative factors about your life. Some
of the positive factors the judge will look for as well as the ways you can prove their existence
are listed below.
*

Your Family Ties Within the United States: Birth certificates, marriage certificates,
family photos, copies of family member green cards, U.S. Passports or naturalization
certificates, and letters from family members;

*

Your Long Term Residence in the United States: Apartment leases or mortgages,
letters from neighbors, and telephone, cable, and electric bills;

*

Evidence of Hardship to Your Family Members if You are Deported: Records of any
medical, psychiatric or educational disabilities of family members who depend on you;
19

testimony or letter from your spouse (even if you are separated or divorced) showing that
you provide financial and emotional support for your children;
*

Evidence of Hardship to You if You are Deported: Medical or education records
indicating a disability or chronic health condition;

*

Reports About Your Country: Newspaper and magazine articles, or U.S. State
Department Country Reports on the human rights and/or economic conditions in your
home country;

*

Service in the United States Armed Forces: Discharge papers, commendations, VA
benefits statements;

*

History of Employment: Letters from your employers, pay stubs, W-2 forms, social
security earnings statements;

*

Ownership of Property in the United States: Mortgage, bank statements;

*

Tax History: Copies of your tax returns from as many years back as you can, a printout
of tax filing from the IRS;

*

Proof of Rehabilitation: Certificates of your attendance at drug or alcohol rehabilitation
programs, letters from counselors, therapists, or your sponsor;

*

Community Service: Letters from youth sports programs, church groups, and civic
organizations;

*

Any Other Evidence That May Exist of Your Good Moral Character.

Negative Factors: The judge must also consider why it is you are in removal proceedings.
Negative factors include your criminal history and the circumstances of the crimes for which you
have been convicted, lack of work history and payment of taxes, any other violations of the
immigration laws, or any other evidence of bad character.
Your Testimony: You will be required to testify in support of your application for relief.
In the case of asylum, withholding, or CAT, your testimony must be detailed. It is not enough to
say that you or members of your family were arrested or tortured. You must give the judge
details such as when these events happened, where, and who was involved. It may be difficult,
but you will need to describe how you were abused or tortured or how family members were
killed.
In the cases of cancellation, 212(c), and adjustment, your life becomes an open book. The judge
wants to hear about your whole life - your childhood, education, family and marital history,
20

arrival in the United States, your work history, medical history, alcohol and drug abuse history,
and generally any other important aspect of your life.
The Judge Cannot Reconsider Your Guilt: The immigration judge has no authority to
reconsider whether you were actually guilty of the crimes you were convicted of. Even though
you may have an explanation, the judge simply is not allowed to consider whether you were
innocent or guilty. For the immigration judge, the important thing is that you have accepted
responsibility and that you will not commit more crimes in the future. It may backfire if you
deny that you committed the crime you pled guilty to. Therefore, since you have already been
found eligible for relief, you should attempt to provide any mitigating evidence about those
crimes. For example, document that you were addicted to drugs at the time but that you are
rehabilitated now, or that you were under extreme stress at the time and have received counseling
to learn to cope, or simply that it was a stupid thing to do which you greatly regret now.
Testimony of Others: You may call as many witnesses as necessary to testify in your case. This
includes your spouse, children, siblings, friends, clergy, doctors, etc. They should be prepared to
talk about how they know you, your good moral character, why they do not want you to be
deported, and that they know about your convictions or other evidence of bad character.
Witnesses should not testify if they are not legally in this country or if they could be put in
removal proceedings.
The Judge’s Decision: Most of the time, the judge will make her decision immediately after the
hearing is over, but sometimes the judge will set a new date to give her decision or will send you
(or your lawyer) the decision in the mail. The judge can give the decision orally or in writing.
She will ask both you and the government lawyer if the decision is “final” meaning that the
decision is acceptable to both parties. If you won, you can tell the judge that the decision is final.
If you lost and want to appeal her decision you must tell the judge that you reserve the right to
appeal. The government lawyer also can reserve the right to appeal.

Voluntary Departure
If you have no ability to remain in the United States, you should seriously consider requesting
voluntary departure (VD). The advantage of voluntary departure is that you will not have a
removal order against you. This is important if you ever hope to return to the United States. If
you are ordered removed, you will be barred from returning to the United States for a number of
years. With voluntary departure, you may be able to return much sooner. If you have been in the
United States illegally for more than 180 days, however, voluntary departure may not help you
re-enter the United States (see the next section “Unlawful Presence”).
A voluntary departure removal order is much harder to reopen than a regular removal order.
Therefore, you should carefully consider whether it is better take voluntary departure or an order
of deportation. This is particularly true if you believe that you may become eligible for some
form of relief, such as adjustment of status, at a later date and might seek to reopen your case.
21

In order to get voluntary departure you will need to show the judge: (i) that you have a valid
travel document, and (ii) the means to buy a one way open ticket (a ticket without a departure
date) to your country. If the judge grants you VD he will give you a certain period of time to get
your documents and ticket, usually 30 days for people in detention.
You Cannot Get Voluntary Departure If You
*

have been convicted of an aggravated felony; or

*

have a prior removal order.

When to Make the Request for VD: Certain additional conditions apply depending on when
you ask for VD. If you request VD before the end of the immigration proceedings, the judge can
give you a maximum of 120 days to leave. Arriving aliens, however, are ineligible for this form
of VD. If you make your request at the end of proceedings the judge can grant you a maximum
of 60 days to depart. Moreover, you will have to show the judge that you were physically present
in the United States for one year before the NTA was filed and that you have had good moral
character for five years (not convicted of any crimes for five years). Thus, the earlier you request
VD, the greater the chance the judge will grant it. Arriving aliens are eligible for this form of
VD.
Failure to Depart After Granted Voluntary Departure: If you do not depart when required,
the order of voluntary departure automatically becomes an order of deportation. If you are later
apprehended by ICE, they can simply deport you. You will have no right to see a judge. A
voluntary departure order is much harder to reopen than a regular removal order. Therefore, you
should carefully consider whether it is better to take voluntary departure or an order of removal.
If you are detained and you have a ticket and travel document by the date set by the judge but
ICE is unable to remove you by that date, you should still get VD.

Unlawful Presence
If you overstay your visa or have entered the United States without inspection since April 1,
1997, you may begin to accrue “unlawful presence.” Once you have accrued 180 days of
unlawful presence, you will be subject to a three year bar to admission from the U.S. If you
accrue one year of unlawful presence you will be subject to a ten year bar to admission. This
means that if you leave the United States and then attempt to reenter lawfully, you will not be
allowed to do so for three or ten years. This can be a problem if you want to adjust your status to
become a lawful permanent resident within the United States. Note that unlawful presence does
not begin to accrue until after you turn 18 years old.

22

Appeals to the Board of Immigration Appeals
The Board of Immigration Appeals (BIA) reviews the decisions made by the Immigration Judge.
The BIA is located in Virginia and almost all of the proceedings before it are conducted on paper.
The BIA has very strict rules about how to file and prepare an appeal. Failure to follow these
rules may result in your appeal being dismissed.
Filing Deadlines/Extensions: Both you and the government have the right to appeal the
decisions of the immigration judge. To appeal, you must file a Notice of Appeal with the BIA.
The notice must be received by the BIA within 30 days of the judge’s decision. When the judge
decides the case she will give you a piece of paper where she has checked off her decisions. On
the bottom of the page is the date by which you must file your appeal. It is not good enough to
mail it by the 30th day; the notice of appeal must actually be received in the clerk’s office of
the BIA by the 30th day. If it arrives even one day late, the appeal will be dismissed.
To send by regular first class mail the Board’s address is
Board of Immigration Appeals
Clerk’s Office
P.O. Box 8530
Falls Church, VA 22041
To send by courier or overnight delivery the Board’s address is
Board of Immigration Appeals
Clerk’s Office
5107 Leesburg Pike, Suite 2000
Falls Church, VA 22041
The Notice of Appeal: This is a form that will be given to you by the immigration judge. On the
form, state the reason for your appeal, giving all the legal claims you want to make. You must
say whether you plan to file a legal brief. A few weeks after filing the Notice of Appeal, you will
receive a letter from the BIA stating that they have received your appeal. If you said that you
wanted to file a brief, you will later receive a transcript of the immigration hearing and a
“briefing schedule.” This tells you and the government when your briefs are due. You can ask
for one extension of time, but you should do so early in the process. You may request oral
argument, the chance to explain in person why your case was improperly decided by the
immigration judge. Requests for oral argument are rarely granted.
The Brief: Writing a brief is not easy, even for lawyers. When writing a brief you should start
with a statement of facts outlining the essential facts of the case including when you came to the
United States, the manner in which you came, when proceedings began against you, and the
specific charges the government made against you. You should then briefly state the evidence
that was before the court. You cannot refer to anything that was not shown or presented to the
23

immigration judge. When you have completed your statement of facts, you should then state
your specific legal claim or claims. There is no need to use legal terms but you should cite to
cases that you know support your argument. The BIA knows that you are not a lawyer. Note that
if you tell the BIA in your notice of appeal that you will file a brief but then do not do so, your
appeal may be dismissed.
The BIA decision: The BIA can take several months or even years to make a decision. Appeals
involving detainees move relatively quickly.
Summary Affirmances: The Board recently adopted a policy of issuing summary affirmances.
These are one-page and sometimes one-line decisions simply stating the Immigration Judge was
correct without any discussion of the individual facts and circumstances of a case. There is
currently much litigation in the federal courts regarding the legality of this type of decision.

Motions to Reopen or Reconsider
Under certain circumstances you may ask the immigration judge or the BIA to review your case
again. The motion must be filed with the court that last decided your case. A motion to
reconsider asks the court to reconsider the decision in light of new case law or changes in the
law.
A Motion to Reopen asks the court to reconsider in light of new facts or new evidence. If you
were ordered deported in your absence, you may file such a motion with the immigration judge
who ordered you deported.
Basis for the Motion: The grounds upon which a motion to reopen may be granted are:
*

New Facts or Evidence: You will need to show why this new evidence was previously
unavailable to you and could not have been presented to the court earlier;

*

Circumstances Have Changed in Your Country Which Make it Unsafe for You to
Return: You will need to explain what has changed and why it is unsafe for you to
return to your country at this time;

*

Lack of Notice: If you were did not appear in court because you did not receive proper
notice the court mat reopen your case. You will nee to explain why you did not get notice;

*

Ineffective Assistance of Counsel: The court may not consider a claim of ineffective
assistance of counsel unless you also file a formal complaint against your former attorney
with the bar association in the state where your lawyer practices. Each state has different
requirements on how to file a complaint.

Filing Deadlines: In some circumstances there is a deadline for filing a motion to reopen:
24

*

If the basis is new facts or evidence, the deadline for filing a motion to reopen is 90 days
from the date of the order. If you are unable to file within 90 days, you must ask the court
to reopen as a matter of discretion and in the interest of justice;

*

If the basis is changed circumstances in your country, there is no deadline to file the
motion;

*

If the basis is lack of notice, there is no deadline to file this motion;

*

If the basis is failure to appear in court due to exceptional circumstances and/or
ineffective assistance of counsel, the deadline for filing this motion is 180 days from the
date of the final order. If you do not file within 180 days, the judge may reopen as a
matter of discretion;

*

If the removal order was issued in an exclusion or deportation proceeding that occurred
before June 13, 1992, there is no deadline.

Fees: If the motion to reopen or reconsider is based on a lack of notice, no fee is required. If the
basis of the motion is failure to appear due to exceptional circumstances or new facts or
evidence, a filing fee of $110 is required. You may, however, request a fee waiver.
Stay of Removal Pending Decision on the Motion: If the motion is based on lack of notice or
failure to attend your hearing due to exceptional circumstances, the filing of the motion to reopen
automatically stays your removal/deportation. If the motion is based on new evidence or changed
circumstances in your country, the filing of this motion does not automatically stay your
deportation/removal. You must ask the judge in writing for a stay of your removal.

Federal Court Review
The rules regarding review in federal courts are very complicated and ideally you should not file
anything with a federal court unless you have consulted an attorney.
Petitions for Review to the Federal Appeals Court: If you wish to challenge the BIA’s
decision that you are removable, you must do so by filing a Petition For Review with the federal
Court of Appeals that had jurisdiction over the immigration court where your immigration
hearing was held. Your Petition for Review must be filed within 30 days of the BIA decision
you are appealing.
*

Not Available for Discretionary Decisions: The court of appeals may only review
questions of law. For example, you may challenge a decision by the Board that you were
not statutorily eligible to apply for relief but cannot challenge the decision of the Board
that you did not deserve cancellation of removal as a matter of discretion.

*

Exhaustion of Administrative Remedies: The court of appeals will generally require
25

that you go through the entire administrative process in your case before raising your
claim. You must show that your case was reviewed on appeal by the BIA and that you
raised the specific issues contained in your petition before the immigration judge and
BIA.
*

Jurisdiction: Your petition must be filed with the circuit court that has jurisdiction over
the immigration court where your case was decided.

Post-Order Custody & Release from Indefinite Detention
Once you are ordered removed by the immigration judge and there are no more appeals or other
challenges to your removal, the government has a limited period of time to physically remove
you to your country of removal. The actual removal can take anywhere between a couple of
days and several months. As a general rule, the government must remove you within six months.
If ICE fails to do so, you may be released on parole. What this means is that you may be
released, but you will need to report periodically to ICE. If the situation changes and ICE can
remove you, you will be sent a “bag and baggage” order requiring you to appear at ICE on a
certain date for removal.
90 Day Custody Review: If after 90 days from the date of your final order you are still in ICE
custody, your Deportation Officer (DO) is required to perform a custody review to determine
whether there is any chance that ICE will be able to remove you from the United States. You
should receive a notice of this review. If you do not receive a notice more than 90 days your
removal order becomes final, you should write to the DO and request a “90 day custody review.”
The DO will also give you instructions as to various materials, such as passports, birth
certificates, and other identity documents that you will need to provide him or her. If the DO
determines that it is unlikely that ICE will be able to remove you in a reasonable period of time,
ICE should release you. As a practical matter, however, few people are released after 90 days.
180 Day Custody Review: After 180 days, the Detention Unit at ICE in Washington, D.C. will
conduct a review of your case to determine whether there is a reasonable possibility that you will
be removed in the near future. If you do not receive notice of this review after you have been
detained six months, you should request a review. There are several factors ICE will consider to
determine whether you should be released on parole:
*

Is the Country to Which You Are to Be Removed Likely to Permit Removal in the
Near Future: Sometimes, the delay is caused by consulates or other government
agencies in the country of removal. If the delay is due merely to a bureaucratic delay it is
not likely you will be released. On the other hand, if the country to which you are to be
removed is at war or if it does not have a repatriation agreement with the United States
(such as Cuba), you have a strong argument for release;

*

Your Cooperation with the Removal Process: If the DO reports that you have failed to
provide necessary documents such as a passport or birth certificate, you may be denied
26

parole. Similarly, if the DO reports that you have somehow interfered with your removal,
you may be denied parole. Typically you will need to provide your passport, birth
certificate, or other identity documents from your country. If you do not have such
documents, you will need to provide your deportation officer with sufficient information
so that your consulate may issue a travel document. You will also need to make a request
to your consulate for a travel document. Failure to provide these documents or this
information may be deemed a failure to cooperate;
*

Flight Risk: ICE could deny parole if it determines that you are a flight risk or somebody
who would not report for parole as required. To avoid this provide your DO with proof
that you have a stable address (such as a letter from a relative with whom you will live
with after you are released) or a job when you are released;

*

Danger to the Community: You may also be denied parole if ICE determines that you
are a risk to the community or likely to commit more crimes. To avoid this, proof of
rehabilitation should be provided to the DO. You will also need to argue that your
criminal record is not very serious or that it does not contain any crimes of violence.

Challenging Your Detention in Federal Court: The Immigration and Nationality Act permits
the Department of Homeland Security to detain an alien with a final order of removal in order to
effectuate removal. The Supreme Court has held that six months is a presumptively reasonable
period of detention for the government to effect removal. Once six months have passed, you
must be released if there is no significant likelihood of removal in the reasonably foreseeable
future. To challenge your detention after six months, you will need to file a writ of habeas
corpus in the federal district court with jurisdiction over the place where you are detained with a
copy to the U.S. Attorney for the district.
*

Your removal order must be final: The six month period of time in which the
government must remove you begins only when your removal order is final. That means
either that you have not appealed to the BIA or your appeal to the BIA is completed, and
that you are not challenging your removal in federal court.

*

Release is not automatic: After six months, the government is only required to conduct
a review of your case to determine whether there is a significant likelihood of your
removal in the reasonably foreseeable future. If there are reasons to believe that you will
soon be removed, the government is under no obligation to release you. However, if
there is no indication that you will be removed soon, the government must release you
under an order of supervision. The one exception is if the government claims that you
have not cooperated with your removal.

*

You must cooperate with your deportation officer in your removal: During the
removal process you must cooperate with your deportation officer in obtaining any
necessary travel documents. On the other hand, the fact that your country refuses to
accept you through no fault of yours is not a ground to keep you in custody.
27

*

Other reasons why the government might refuse to release you: The government may
try to continue to detain you after six months even if there is no possibility that they can
remove you and you have fully cooperated with their efforts to obtain travel documents, if
they believe that “special circumstances” require your continued detention, such as: you
have a highly contagious disease, are mentally ill, or your release would have serious
adverse foreign policy consequences, or raise other security or terrorism concerns.
Whether these are permissible grounds to continue you in detention is not settled and can
be challenged in federal court.

Bars to Reentry
Once a person is removed, they are barred from returning to the United States for a period of
time, depending on the basis for removal.
* Ordered removed on inadmissibility grounds
(other than a controlled substance offense) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 years
* Ordered removed on deportation grounds
(other than an aggravated felony) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 years
* Excluded or deported under old law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 years
* Two orders of removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 years
* Failure to attend removal proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 years
* Ordered removed for an Aggravated
Felony or controlled substance offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . permanent
Certain kinds of waivers are available to allow certain kinds of re-entry despite these bars.

Illegal Reentry
If you illegally re-enter the United States after having been ordered removed and you are redetained, you may be subject to criminal prosecution and prison for as much as twenty years
depending on the basis of the original removal order.

28

Resources
United States Citizenship and Immigration Services - http://www.uscis.gov: This web site has
links to the Immigration and Nationality Act and Code of Federal Regulations.
Executive Office for Immigration Review - http://www.usdoj.gov/eoir/: Contains a virtual law
library with all of the precedent BIA decisions as well as links to important federal court cases.
For information on the status of your case call
1-800-898-7180
Immigrant Defense Project, New York State Defenders Association- http://www.nysda.org:
Primarily a resource for lawyers, this web site provides updates on recent developments in the
law. Hotline: 1-212-898-4132
Florence Immigrant Rights Project - http://www.lirs.org:
This web site contains valuable guides on how to apply for specific types of relief in much
greater detail than covered in this booklet.
United States State Department - http://state.gov:
Contains the annual human rights reports for countries around the world.
Amnesty International - http://www.amnesty.org:
Contains reports on human rights abuses in various countries which sometimes differ from the
State Department reports.

The writing of this booklet was made possible through funds from a settlement with the Office
of the Attorney General of the State of New York. The statements made and views expressed,
however, are solely the responsibility of the Legal Aid Society
29

 

 

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