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Court of proper jurisdiction. The NTA also contains the factual allegations that the United
States is making against the alien and states which provisions of law has been
violated. Once an NTA has been issued, the matter is now in the full discretion
of the Immigration Court and the various federal administrative agencies under
the Department of Homeland Security no longer have authority to act. It is
imperative that an alien who has received an NTA act quickly to preserve legal
rights and to make any motions to dismiss the NTA based on legal grounds which
may be available. Though it may take several months for the Immigration Court to
schedule the date of the Removal Hearing, it does not help to delay seeking
legal protection. Also, the NTA requires
an alien to confirm his or her address and telephone number or to submit a
change of address to the Attorney General immediately. Failure to comply with
the requirement to confirm an alien’s U.S. address will result in waiver of
further written notification. A Final Order of Removal will be entered against
any alien who fails to appear at his or her Removal Hearing unless there are
exceptional circumstances as to why the alien could not be present.
Cancellation of Removal
Cancellation of Removal is a defense to Removal Proceedings that, if successful,
allows an alien to adjust status to Legal Permanent Resident (LPR) upon an
Immigration Judge’s order and visa availability at the time of the Merits
Hearing. This strategy is available to certain non-permanent residents who can
prove that they qualify for Cancellation of Removal under specific criteria.
Cancellation of Removal is also available to current LPR’s under a different set
of qualifying criteria. For non-permanent residents, the eligibility criteria to
seek Cancellation of Removal is as follows:
- Continuous physical presence in the United
States for at least 10 years;
- Good moral character during the 10 year
period (this includes but is not limited to no history of certain criminal
offenses, falsifying documents, or being a threat to national security)
- Proof that removal from the United States
would result in exceptional and extremely unusual hardship to the alien’s
U.S. citizen or LPR spouse, parent, or child.
An immigration attorney who is a member of the
American Immigration Lawyers Association (AILA) should be consulted to ascertain
the possibility of Cancellation of Removal as a grounds for defense.
Bond and Detention
If an alien is apprehended by Immigration Customs Enforcement (ICE) and detained
as someone subject to Removal, that alien should seek legal counsel right away
to determine the possibility of being released on bond. Bond may be denied to a
person convicted of certain criminal charges or who is considered a flight risk
or a threat to national security. Bond is generally granted in the discretion of
the Immigration Judge, but Mandatory Detention applies to aliens who are
convicted of certain crimes or who already have a Final Order of Removal is
issued against them.
Arriving aliens, even aliens in current legal
status, have no right to a bond hearing if they are detained upon entry into the
United States for any reason. Arriving aliens who are taken into custody at a
port of entry may seek instead to be paroled from custody.
State Crimes and ICE Detainers
If an alien subject to Removal is in the custody of the State Department of
Corrections or the custody of a local law enforcement agency, ICE can place a
detainer on that alien which gives the state or local law enforcement agency the
ability to hold the alien for up to 48 hours until ICE can move to transfer
custody for the purpose of Removal proceedings. In this situation, an alien
should immediately contact both a criminal defense attorney and an immigration
attorney before the time that ICE has invoked the detainer order, if possible.
Stays of Deportation and Appeals
A alien can move for a stay of deportation while seeking review of an appeal
that has been made to the Immigration Court or another court. Consult an
immigration attorney to determine whether any form of appeal is available in the
course of a Removal Proceeding.
Voluntary Departure and Self-Removal
Once Removal Proceedings have begun, an alien may seek permission for Voluntary
Departure to be granted before a Final Order of Removal is entered against the
alien. Voluntary Departure gives an alien in Removal Proceedings up to 120 days
to depart the United States, usually without posting a bond. After a Final Order
is entered, an alien may seek permission for “Self-Removal,” which allows the
person to make arrangements to depart, which are paid at his or her own expense.
Both Voluntary Departure and Self-Removal are considered forms of relief that
are granted to a person of good moral character.
Final Order of Removal
Once a Final Order of Removal is entered against a person, there are serious
civil and immigration penalties which apply for failing to depart. Someone who
is ordered removed from the United States is ineligible to apply for re-entry
for a period of time which can be 5 or 10 years. A person who re-enters the
United States illegally after a Final Order of Removal is issued is permanently
barred from ever being conferred legal status and federal criminal consequences
apply.
THE INFORMATION CONTAINED IN THIS BROCHURE DOES
NOT CONSTITUTE LEGAL ADVICE. CONSULT AN IMMIGRATION LAW ATTORNEY ABOUT YOUR
INDIVIDUAL SITUATION. | 
