If you are unlawfully present in the United States (if you entered the United States without inspection or if you have overstayed your authorized period of stay on a visa), you risk being targeted by Immigration and Customs Enforcement (ICE) for detention. You may also be subject to ICE detention if you have been arrested in the United States. If you have been detained by ICE, it is possible to be released bond. Bond is money paid to ICE in order to guarantee that you will show up for future court dates and obey all rules/restrictions that have been put into place by ICE or the Immigration Judge. Bond can be granted by ICE or by an Immigration Court after you have been placed into removal proceedings. Most often, bond is not set by ICE, which means you must wait to go in front of an Immigration Judge to request bond. [Note: An Immigration Judge may deny a bond request if you are believed to be a flight risk or a danger to society. Bond is never guaranteed.] Once a bond amount is set, the bond must be paid before you will released. The Immigration Judge will move forward by scheduling you for a Master Calendar hearing, at which time you must provide the court with any possible forms of relief from removal proceedings. Caruso Law Group can help you determine if you are eligible for bond and work with you to request bond from an Immigration Judge.
Removal proceedings begin when the government issues a Notice to Appear (NTA) in immigration court. The Executive Office for Immigration Review (EOIR) schedules you to appear in person on a specified date and time for a master calendar hearing. During your master calendar hearing, the Immigration Judge will review the charges of removability set forth in the NTA. You must admit to or deny the charges. If the government successfully proves the allegations set forth in the NTA, or if you admit the allegations are true, the Immigration Judge will conclude that you are removable from the United States. You then have the burden of identifying the applicable form(s) of relief from removal in your unique situation. It is extremely important to appear at all scheduled Immigration Court hearings. Failure to attend any Immigration Court hearings will result in an Order of Removal in Absentia.
If you are permitted to file an application for relief from removal, the Immigration Judge will schedule you to appear in court at a later date for an Individual Hearing. This hearing is like a small trial where you are able to present witnesses and testimony in support of your application for relief. You may submit evidence and arguments to the Immigration Judge prior to your Individual Hearing. On the day of the Individual Hearing, the Immigration Judge will listen to testimony and review all evidence presented by you and by the government counsel. At the end of the Individual Hearing, the Immigration Judge will issue a decision, which will become final if it is not appealed to the Board of Immigration Appeals in a timely manner.
There are several options of relief from removal proceedings. Attorney Caruso can help you determine which options are most appropriate for your situation. Call 412.265.1822 today for a free 60 minute consultation!
Asylum & Withholding of Removal: If you have a fear of persecution if forced to return to your home country, you may apply for asylum. Your fear must be based on a protected category: race, religion, nationality, political opinion, or membership in a particular social group. If you are not eligible for asylum, you may consider filing an application for Withholding of Removal. You must still establish a fear of persecution based on a protected category. However, your withholding application must prove that you are more likely than not to suffer persecution. Although the requirements are more stringent for Withholding of Removal, the government is not permitted to deny an application based solely on discretionary considerations. There is no one-year filing requirement for withholding, and certain bars to filing asylum may not prevent a grant of withholding.
Cancellation of Removal: Cancellation of Removal is available to both lawful permanent residents and non-lawful permanent residents. If you are a non-lawful permanent resident, you may be eligible for a green card through Cancellation of Removal if you satisfy the following requirements:
- Continuous residence in the United States for ten years prior to being served with a Notice to Appear
- You are a person of good moral character
- Your removal from the United States would cause your United States citizen or lawful permanent resident spouse, parent, or child to suffer exceptional and extremely unusual hardship
- You have not been convicted of crimes that bar an application for Cancellation of Removal, specifically – crimes that qualify as aggravated felonies
If you are a lawful permanent resident, the requirements for Cancellation of Removal differ slightly, and they are considerably less challenging to prove. The biggest difference for lawful permanent residents in a Cancellation application is not having to prove hardship to a qualifying relative. If you have a been a lawful permanent resident for at least five years, you must prove the following:
- Continuous residence in the United States for a period of seven years prior to being served with a Notice to Appear
- You have not been convicted of an aggravated felony
- You deserve, as a matter of discretion, to be granted cancellation of removal
Adjustment of Status: If you have a qualifying United States citizen or lawful permanent resident relative, you may be eligible to file an I-485 Application to Register Permanent Residence or Adjust Status. In order to file an I-485 Application, you must have been admitted and inspected upon your entry to the United States and have a valid, approved I-130 Petition for Alien Relative filed on your behalf by your qualifying relative. Additionally, you must not have any previous immigration violations (though some exceptions apply). If you are permitted to adjust your status, your I-485 Application is usually adjudicated by the Immigration Judge rather than USCIS. If your qualifying relative is your spouse, and your marriage took place after you were entered into removal proceedings, then you must provide clear and convincing evidence that your marriage is real.
Prosecutorial Discretion: In some situations, ICE may discretionarily agree to discontinue working on a removal/deportation case. ICE may also make discretionary decisions regarding whether to serve a Notice to Appear, whether to detain or release an individual, whether to join in on a motion on a case, whether to grant deferred action, and/or whether to issue a stay of removal rather than pursue removal. There are priority guidelines in place that establish in which cases ICE should consider exercising prosecutorial discretion.
Waivers: If you have been determined to be inadmissible to the United States, you may request to file an I-601 or an I-601A hardship waiver. You are inadmissible to the United States if you have accrued unlawful presence in excess of 180 days, if you have willfully misrepresented information or provided fraudulent documents in order to obtain an immigration benefit, or if you have been convicted of or have admitted to committing a crime involving moral turpitude. Refer to “Waivers” under the “Services” tab on the Caruso Law Group website for more information.
Voluntary Departure: The Immigration Judge and ICE may consider granting voluntary departure in your case instead of an order of removal. Voluntary departure requires you to depart the United States within a specified period of time at your own expense. If granted voluntary departure, you will not be barred from legally returning to the United States at a later date. However, failing to depart the United States after being granted voluntary departure will result in a 10-year bar to most forms of immigration relief.