Removal and/or deportation are processes by which the U.S. Department of Justice and the Immigration and Naturalization Service (INS) attempt to deport/remove non-citizens from the United States. 

What are the Basic Requirements of Removal Proceedings?
There are certain requirements to removal proceedings that serve as guarantees to the alien that he or she will be treated as fairly as the process allows. The alien must be given proper notice and may choose to be represented by an attorney. The alien must be given the opportunity to present evidence on his or her behalf and examine the evidence against him or her. The decision to remove/deport or not to remove/deport the alien must be based on "reasonable, substantial, and probative evidence." 

Why Would a Person Be Subject to Removal?
A person may face removal proceedings for a number of reasons. Non-citizens who 1) have entered the U.S. without authorization; 
2) have overstayed their visas; 
3) have violated terms of their visas; or 
4) have been convicted of certain crimes which may be subject to removal proceedings. 

An alien, including a lawful permanent resident (LPR), may face removal proceedings because they have committed a certain crime. The INS usually defines these classes of crimes as aggravated felonies; crimes of moral turpitude; crimes of violence; and crimes involving the sale and/or possession of illegal drugs. 

How is a Person Placed in Removal Proceedings?
Removal proceedings begin with the service of the Notice to Appear (NTA). The NTA is basically the official charging document of the INS that places an alien in removal proceedings. The NTA contains a general statement of the allegations and charges against the alien, a description of the activity that is allegedly illegal, and a list of the statutory provisions alleged to be violated. The NTA also lists the time and place the alien is required to appear before the Immigration Judge. 

Once you receive NTA you should promptly contact an attorney to assist you. You will only be given a certain amount of time before you must appear before the Immigration Judge. 

The alien must also demonstrate to the court that they will attend all of their future hearings. 

Master Calendar
The Master Calendar Hearing is generally the alien's first appearance in Immigration Court. The Master Calendar is a preliminary hearing to review the charges in the NTA before an Immigration Judge. The Immigration Judge will explain the alien's rights (e.g., the alien's right to an attorney). If the alien feels he or she is not ready to proceed at the Master Calendar Hearing, for example, if the alien needs some time to hire an attorney, the alien must ask the judge for a continuance with "good cause"; most Immigration Judges will allow this continuance. If the alien is ready to proceed at this Hearing, with or without an attorney, the judge will ask if the alien agrees or denies the charges as alleged by the INS in the NTA. If the alien does not agree with the charges, the alien can and should deny the charges and ask the government to prove its case. 

The Immigration Judge will determine if the alien is eligible for any form(s) of relief, and set a date for the Individual Merits Hearing. 

Individual Merits 
The Individual Merits Hearing is when the government must prove the charges alleged in the NTA. The alien also is able to present his or her case to the Immigration Judge with witnesses and persuade the Immigration Judge to use his or her discretion and allow the alien to remain in the United States (if such relief exists). 

At the conclusion of the removal proceedings, the Immigration Judge will determine if the alien should or should not be removed from the U.S. 

The Consequences of Removal
If the Immigration Judge orders "removal" in the alien's case, the alien loses their privilege to remain in the United States. If this is the alien's first order of removal, the alien cannot legally return to the United States for at least ten years or more depending on the specific case. If the alien was convicted of an aggravated felony, he or she may never be able to return to the U.S. 

Does Relief Exist?
Relief from removal/deportation may exist to certain aliens. An alien's eligibility for relief depends on many factors, and is determined on a case-by-case basis, e.g., the length of time the alien has resided in the United States. 

If after looking over the charges on the NTA, we can determine that the alien is eligible for relief, Vakili and Associates will prepare the alien's application for relief and present this to the Immigration Court on their behalf. Examples of relief include: Cancellation of Removal for Lawful Permanent Residents/Non-Lawful Permanent Residents; Adjustment of Status; and/or Voluntary Departure.

Asylum
Asylum is another possible way to stay in the U.S. legally. You may be able to ask for this protection in the United States if: (i) you feel that you will be harmed if you return to your own country; or (ii) you have suffered harm there in the past. The threat or harm must come from the government or someone the government cannot or will not control. You must have lived in the United States for less than one year.

You must show the threat or harm is because of:

* race
* religion
* nationality
* political beliefs
* membership in a particular social group
 

If any of this applies to you, you should contact Vakili & Associates to discuss if asylum is an option for you.

Who is Eligible for Bond?
When an alien is taken into custody, the INS does have the option to release the alien. An alien must show that he or she does not pose a threat to national security or a bail risk. Factors to consider are previous arrests in the U.S., previous convictions in the alien’s native country, illegal entry into the U.S., employment status, participation in subversive activities, and the presence of relatives in the U.S.
 
 

Definition of a Conviction 
An immigration conviction is a very broad net. It encompasses many dispositions, which do not constitute convictions under state law. A conviction is a judgment of guilty by judge or jury.

A conviction for a crime by the INS is:

1. There is a finding of guilty by a judge or jury;
2. The alien has entered a guilty plea;
3. The alien pleads nolo contendere (no contest); or
4. Admits to sufficient facts (continued without a finding, cwof).

and

The judge orders some form of punishment, penalty or restraint on an alien’s liberty, including probation, suspended jail sentence, or an imposed jail sentence.

Dispositions that will not trigger immigration proceedings:

1. Guilty filed – In Massachusetts, a disposition of "guilty filed" does not constitute a final conviction and therefore may not be counted as a conviction for immigration proceedings.
2. Pre-trial probation (PTP) – Since no conviction results, this is the ideal disposition. Unfortunately, it is rarely available and requires the assent of the prosecutor.
3. Continuance – This is a similar disposition to pre-trial probation. In cases which involve restitution or other conditions, the Court may continue the case generally without an adjudication of guilt or an admission to sufficient facts for a specified period of time. If the defendant has fulfilled the requirements of the court – such as paid a fine, the Court may then dismiss the charge. This disposition requires the agreement of the prosecutor and a willing judge.
 

This relief requires a showing by the applicant that he/she is entitled to apply for this relief. This showing requires that he/she meet the statutory elements as stated in the law of Immigration and Naturalization Act (INA) and discretionary factors as decided by the Immigration Judge. What this means is that in order to even apply for this form of relief, one must first meet the specific elements to be eligible to apply for this relief, and once eligibility is determined, it is the applicant’s burden to prove to the Immigration Judge that he/she should be allowed this relief and persuade the Immigration Judge to use his/her discretion and allow the applicant to remain in the United States.

There are two (2) forms of the discretionary relief known as Cancellation of Removal. One form of this relief is specific to lawful permanent residents (LPR) and the other form is specific to non-LPRs. Each will be discussed below.

Cancellation of Removal for LPR
If you are a LPR, in order to apply for this form of relief, you must meet the following criteria as stated in section 240A(a) of the INA, which allows the cancellation of removal if the alien:

1. has been a LPR for not less than 5 years;
2. has resided continuously in the United States for 7 years after being admitted in any status; and
3. has not been convicted of any aggravated felony.
 

In addition to showing that you meet the above statutory elements to apply for Cancellation of Removal, you must also show that you deserve this relief as a matter of discretion. In order for the Immigration Judge to determine whether you deserve to stay in the United States, a hearing is held. This hearing is called the Individual Hearing on the Merits. At this hearing the Immigration Judge will hear testimony and review the entire application for Cancellation of Removal.

During the hearing and after a thorough review of the application, the Immigration Judge balances both positive and negative factors about you. The Immigration Judge "must balance the adverse factors evidencing the alien’s undesirability as a permanent resident with the social and humane considerations presented in his or her behalf to determine whether the granting of … relief appears in the best interest of this country." Matter of C-V-T, Int. Dec. 3342 at 3 (BIA 1998).

The following is a list of positive and negative factors. Generally if you have more positive factors than negative, you will have a strong application for Cancellation of Removal. Thus, you will have a strong presentation to persuade the Immigration Judge to use his/her discretion to allow your application for Cancellation of Removal, and allow you to stay in the United States.

A. Positive Factors:
1. family ties in the U.S.;
2. residence of long duration in this country (particularly when begun at a young age);
3. evidence of hardship to the respondent and family if removal occurs;
4. service in the U.S. Armed Forces;
5. history of steady employment;
6. existence of property or business ties;
7. evidence of value and service to the community;
8. proof of genuine rehabilitation if criminal record exists; and
9. any other evidence of the applicant’s good character.

B. Negative Factors:
1. nature and underlying circumstances of the grounds of removal;
2. presence of additional significant violations of U.S. immigration laws;
3. existence of criminal record and, if so, its nature, recency, and seriousness; and
4. any other evidence of bad character or undesirability.

These balancing factors are just examples, and each case is decided on its own specific facts.

Cancellation of Removal for Non-LPR
If you are a non-LPR, in order to apply for this form of relief, you must meet the following criteria as stated in section 240A(b) of the INA, which allows the cancellation of removal if the alien:

1. can show physical presence in the United States for a continuous period of not less than ten (10) years;
2. can show good moral character during the ten year period;
3. has not been convicted of a crime; and
4. can show that removal from the United States would result in exceptional and extremely unusual hardship to the alien’s USC or LPR spouse, parent, or child.
 

Each of the above elements, have very specific requirements to them, however, the most difficult element to meet, generally, is the exceptional and extremely unusual hardship factor. 

Voluntary Departure is a process by which an illegal alien who is about to be removed/deported agrees to leave the country voluntarily. This enables the alien to avoid any penalties that come with removal. 

There is no limit on the number of times an alien may receive voluntary departure. It is available both during and prior to removal proceedings.

The decision to grant voluntary departure is made by an INS officer or by an immigration judge based on humanitarian concerns, prior immigration laws, and other discretionary factors.

Before Removal Proceedings Begin
Requirements for Voluntary Departure before Immigration Court Proceedings are initiated by the INS:

1. the alien must request voluntary departure and agree to its terms and conditions;
2. the application for voluntary departure may be made at any office of the INS; and
3. the alien must present to the INS for inspection and photocopying, a passport or travel document "sufficient to assure lawful entry into the country to which the alien is departing." The INS may hold the passport or documentation for sufficient time to investigate its authenticity.
 

After Removal Proceedings Begin
Voluntary Departure after the Notice to Appear (NTA) is served, this means that Immigration Court Proceedings have begun. Once proceedings have begun, the alien may still request voluntary departure through INS counsel. If the INS agrees to voluntary departure it may either:

1. enter into an agreement to terminate the proceedings, and if proceedings are terminated, grant voluntary departure; or
2. request voluntary departure before the Immigration Judge.
 

Requirements of Voluntary Departure before the Immigration Judge:

1. the alien must request voluntary departure prior to or at the master calendar hearing (usually a person’s 1st court appearance);
2. no other request for relief is made;
3. agrees that he/she is removable form the United States;
4. waives appeal of all issues; and
5. has note been convicted of a crime described in 101(a) (43)[aggravated felony] and is not deportable under 237 (a)(4)[security and related grounds].
 

No showing of good moral character or the financial means to depart is required.

Not Eligible for Voluntary Departure
Some people are not eligible for the relief of Voluntary Departure. Aliens are not eligible for Voluntary Departure if:

1. any conviction of an aggravated felony, 237(a)(2)(A)(iii); or
2. person(s) involved in terrorist activities, 237(a)(4)(B); or
3. person(s) charged as an arriving alien

All forms of relief from deportation, except withholding of deportation, may be granted at the discretion of an Immigration Judge. Final orders of an Immigration Judge may be appealed to the Board of Immigration Appeals, and in certain cases to the appropriate U.S. Court of Appeals.

The philosphy of the Bose Law Firm, PLLC in removal defense litigation is an empirical one based on aggressive defense tactics. The Firm does not engage in simple analysis of relief and waivers in the Immigration Court. Rather, we analyze the facts underlying the Notice To Appear and form strategies to atack the underlying basis for the removal proceeding. Our tactics begin with an in-depth analysis of the criminal case proceedings and facts. In this phase, our efforts are focused on identifying fertile issues for appeal of the criminal conviction and identifying / analyzing the possibility of motions to reconfigure sentences (when applicable). In phase two of our preparation, we analyze all relief and waivers available under the law including cancellation of removal, asylum applications, and voluntary departure. 

The Firm prepares all motion documents and advises clients on all facets of the removal procedure and appeal process. We analyze all options including the establishment of "extreme hardship" when applicable as a form of relief. Our associations with reputable physicians, licensed social workers, and mental health professionals lend credibility to our defense strategy and assist us to prove our cases.