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Removal proceedings, often referred to as deportation proceedings, are legal proceedings initiated by the U.S. Department of Homeland Security (DHS) to determine whether a non-citizen should be removed (deported) from the country. These proceedings take place in immigration court and follow a structured process.

The first step involves the issuance of a Notice to Appear (NTA) by the DHS, which outlines the alleged facts that form the basis for the non-citizen’s removal and outlines the immigration charges against the individual. The non-citizen is then scheduled for a hearing before an immigration judge.

DHS begins removal proceedings against many types of non-citizens, including but not limited to:

  1. Non-citizens who are trying to enter the U.S. but are not entitled to do so. Because they do not have a visa, they have fraudulent travel documents, or other reasons. This also includes temporary visa holders who entered the U.S. legally, but whose lawful status has expired;
  2. Non-citizens who entered the U.S. without going through regular immigration inspection, usually by crossing illegally across the Canadian or Mexican border;
  3. Non-citizens who have accrued unlawful presence by remaining present in the U.S. after the expiration of the period of stay authorized or by being present without  being legally admitted or paroled, in the U.S.;
  4. Non-citizens who apply for immigration benefits such as permanent residency or political asylum, or Naturalization whose applications are denied by the U.S. Citizenship & Immigration Services (USCIS);
  5. Lawful Permanent Residents who have violated the immigration laws by committing crimes in the U.S., or by remaining outside of the U.S. for extended periods.

During immigration removal proceedings, the non-citizen may choose to hire an attorney or proceed without one. At the hearing, both the government attorney and the non-citizen or their attorney present their respective cases. The non-citizen can contest the charges, present evidence in their favor, and provide arguments to establish their eligibility for an immigration benefit that will allow them to remain in the United States. The immigration judge will then make a determination based on the evidence and arguments presented. If the judge orders removal, the non-citizen may appeal the decision to the Board of Immigration Appeals (BIA) and, in some cases, to the federal courts.

Below lists the common types of immigration relief available to individuals facing removal proceedings in the United States, each with its specific eligibility criteria and requirements:

  • Asylum: a form of protection granted to individuals who can demonstrate a credible fear of persecution in their home country based on their race, religion, nationality, political opinion, or membership in a particular social group. To be eligible, individuals must file their asylum application within one year of their arrival in the United States, although there are exceptions to this rule. Asylum can be a powerful defense against removal and may lead to the granting of asylum status, which allows the individual to remain in the United States and to eventually apply for Legal Permanent Residence (a.k.a., a green card).
  • Cancellation of Removal: There are two types of cancellation of removal: one for lawful permanent residents (LPRs) and one for non-permanent residents. LPRs who have been lawful residents for at least five years and have lived in the U.S. continuously for seven years may be eligible for cancellation of removal. Non-permanent residents who (a) have been physically present in the U.S. for at least ten years, (b) can demonstrate good moral character, (c) have not been convicted of certain criminal offenses, and (d) can establish that removal would result in “exceptional and extremely unusual hardship” to the noncitizen’s US citizen or LPR spouse / parent / child[ren] may also qualify for this relief.
  • VAWA Cancellation: Victims of domestic violence or abuse by a U.S. citizen or lawful permanent resident spouse or parent may be eligible for VAWA (Violence Against Women Act) cancellation of removal. This form of relief is available to qualifying individuals who can prove the abuse and meet other eligibility requirements.
  • Adjustment of Status: Adjustment of status allows certain individuals to change their immigration status from a non-immigrant or parolee to that of a lawful permanent resident (green card holder) while in the United States. Eligibility depends on various factors, including family or employment sponsorship, immediate relative status, and visa availability.
  • Voluntary Departure: Voluntary departure is a form of relief that allows individuals to leave the United States voluntarily without a removal order. While it doesn't grant any immigration benefits, it can avoid the negative consequences of formal removal/deportation order. It is typically granted by an immigration judge under specific conditions.
  • Waiver of Removability: in certain cases, non-citizens may be eligible to receive a waiver of the ground of removability and be able to remain in the United States, if they can establish that they have U.S. citizen or lawful permanent resident immediate family members, and that the non-citizen deserves to remain in the United States in the exercise of the Court’s discretion.

If the Court orders a non-citizen removed (deported) from the United States, individuals may still seek relief through Withholding of Removal and/or protection under the Convention Against Torture (CAT). Withholding of removal is a form of relief that prevents an individual from being removed to a country where they would face persecution based on their race, religion, nationality, political opinion, or membership in a particular social group. CAT protection, on the other hand, applies when there is a likelihood that the individual would be subjected to torture if returned to their home country. Both forms of relief have a high burden of proof and may provide a temporary form of protection from deportation.

The specific relief available to a non-citizen depends on their immigration status, and a variety of other factors including their nationality, the date and manner of their entry into the United States, the number of times they have entered the United States and how they entered the United States, their criminal history, their length of time in the United States, whether or not they have U.S. citizen or lawful permanent resident family members in the United States, other factors, and whether they meet the eligibility criteria established by immigration law.

It's crucial for individuals in removal proceedings to consult with experienced immigration attorneys who can help them navigate the complex legal process and explore their options for relief.

For a consultation on a case involving removal proceedings, please contact Kolko & Casey, P.C.

On a limited basis, the firm accepts various removal cases after a thorough consultation and review of the legal issues and options involved in the case.

Most removal cases handled by Kolko & Casey, P.C. are charged an hourly rate for the professional services provided.

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Kolko & Casey, P.C. is a full service immigration and naturalization law firm providing professional legal services to individuals and businesses throughout Colorado, the Rocky Mountain West, the United States, and the World. Our professional staff speaks English, Spanish, Korean, and Portuguese and we can arrange for translators in any other language.