How a Person May End Up in Immigration Court

How a person gets in front of an Immigration Judge can be either voluntary or involuntary.

“Involuntary” generally means that that you have done something wrong where the person comes to the attention of Immigration Customs and Enforcement (ICE). For example, the person committed a crime and has been placed in criminal jail, ICE then picks him or her up and determined that they not eligible to remain in the U.S. ICE issues a Notice to Appear and puts the person in removal/deportation proceedings.

A person can end up in immigration court “voluntarily” by voluntarily filing an application that is subsequently denied. For example, a denied asylum application automatically sends the person to Immigration Court or a denied adjustment of status application for a green card may result in a NTA issued.


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How Can I Get Political Asylum in the U.S.?

There are two ways to get political asylum: The main path is not through the deportation process, but is what is called an “affirmative filing” for political asylum. This is where a person applies for political asylum with the USCIS Asylum Office.

If the case is approved and the applicant is granted asylum by the USCIS Asylum Office, then a year later he or she can apply to become a lawful permanent resident.

If the case is not approved, then they pick up a notice that says “your case has not been approved,” and attached to that notice is a Notice to Appear (NTA) putting the applicant in front of the Immigration Court for removal/deportation proceedings. Then they are entitled to re-apply for political asylum in front of theIJ. If they are approved, they can then become a lawful permanent resident one year later.

Withholding Of Removal And Protection Under the “Convention Against Torture”

When one applies for political asylum usually, but not always, he or she is also applying for the more mandatory, but harder to obtain, defense of “withholding of removal”.

Often people will also allege that if they are returned home they will be tortured by their government, so they to stay under the UN “Convention Against Torture” or the “CAT.”  When somebody applies for asylum in the immigration court, they are usually applying for asylum, withholding, and CAT relief.

But, if they have been in the United States more than one year and have never applied for asylum, they can only apply for withholding and CAT relief. However, the one year period for filing for asylum can be tolled for certain reasons.

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Deportation or Exclusion Proceedings

A removal proceeding is just another word for a deportation or exclusion proceeding. It is presided over by an Immigration Judge (IJ). These are not Article 3 state or federal judges, but are administrative officers who are considered by the federal government to be mid-level employees; they don’t have a great deal of power. IJs have the power to order someone removed from or to allow someone to remain in the U.S.

Reasons for Deportation

There are multiple possible reasons for deportation: Most often people are placed into removal proceedings because they have been convicted of a crime, they have violated an immigration law or laws, have overstayed their visa or status or committed fraud of some variety.

After an immigration arrest, it is impossible to tell how soon someone, or even if, they will be deported.

If someone is a violent criminal and is picked up directly from jail by the DHS, he or she will be taken into custody and kept in custody until his or her country issues a travel document, and then he or she will be deported. When that will be depends on the country and the individual’s case status.

Defenses to Removal

Defenses to removal are varied and many. Some people are able to remain in the United States by applying for political asylum and being granted political asylum. If a person is married to a U.S. citizen, another form of relief is applying for adjustment of status.

Cancellation of Removal

Other people who have been here long enough are able to apply for and obtain what is called “cancellation of removal,” generally requiring that a person has been in the United States a certain amount of time, has been a person of good moral character during that time period, has not committed an aggravated felony, and in the judge’s discretion is deserving of being allowed to remain in the U.S., generally because his or her close relatives who are U.S. citizens or permanent residents will suffer a high level of hardship.

When we are talking about cancellation or removal for nonpermanent residents, that type of hardship must reach the level of exceptional and extremely unusual.

Adjustment of Status

Other defenses to deportation will involve the applicant being allowed to file for adjustment of status. That is, he or she is eligible to obtain a green card because they have a close adult relative who is a U.S. citizen.  Sometimes even a green card holder relative can be enough.

Technicalities as a Defense

One type of defense to removal is to just show that the person is not removable under the ground that is alleged. Often, someone can win on a technicality that in fact they are not removable under the immigration law that is alleged on the notice to appear.

Filing for Prosecutorial Discretion

Filing for prosecutorial discretion (a type of deferred action), is also a defense to removal. Once someone is deported, they are generally barred from reentering the United States. However, if within the period off time they are required to remain outside of the U.S. (i.e., are inadmissible), they are eligible to come back because of a familial relationship who can obtain a green card for them, they are allowed to file a Form I-212 waiver, which is advanced permission to apply for a green card.

Forms, Petitions and Waivers

The I-130 is a family petition. If the I-130 is approved, there may be a chance for the person to apply for and pick up an immigrant visa in conjunction with an I-212 waiver and any other waivers that are necessary such as an I-601 waiver (for fraud or a criminal conviction).

Deportation Appeals: Board of Immigration Appeals (BIA)

There is a deportation appeals process. One can appeal an order of removal issued the immigration judge to the Board of Immigration Appeals (BIA), in Falls Church, Virginia.

One can appeal a BIA decision that it upholds an order of removal once the order is filed to their circuit court of appeals. Here, in San Francisco, we are governed by the Ninth Circuit Court of Appeals.

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Deportation: Deferred Action

Deferred Action is a hands-off policy that the government maintains towards a particular individual under the belief that given the totality of circumstances surrounding him or her, it is best to allow the person to remain.

Often it is because he or she has a U.S. citizen (or permanent resident) parent, spouse and/or children who need that person’s household income, et cetera.

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Prosecutorial Discretion in Deportation

Because the government has limited resources to deport people who are in the U.S. illegally, it has come up with the concept of Prosecutorial Discretion (PD). Under PD, a judgment is made by the Office of the Chief Counsel in a particular jurisdiction that an removable person who has been issued a Notice to Appear does not warrant the time and effort that would be spent trying to remove/deport them. If granted, the person can remain here. But it is not a green card and the status can always be revoked.

One type of Prosecutorial Discretion is called “Deferred Action Status”. Deferred Action means that the removal process is being placed to the side and not acted on, but the case has not being fully terminated. While the proceeding may be administratively terminated and the case closed, it can be reopened if the person does something wrong or if there is a change in priorities on the part of the Government.

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