REMOVAL / DEPORTATION DEFENSE
Removal Proceedings
A “removal proceeding” is the general term that is used to refer to the immigration court proceedings in which the court decides whether a noncitizen is removed from the country or not. It is colloquially known as a “deportation” proceeding, but this term is not correct for all individuals.
“Deportation” vs. “Removal”
The term “deportation” is colloquially used to refer to a situation where a person is physically removed from the United States after a proceeding in which the person is established to have no right to remain in the United States. In 2001, the terms “deportation” was released with “removal.”
TYPES OF REMOVAL / DEPORTATION ORDERS
Judicial Removal Order
An order of removal is the order from an immigration judge ordering a non-citizen to be removed from the country. If the non-citizen had previously been granted Lawful Permanent Resident Status, a final removal order terminates the LPR’s status.
Summary (non-judge) Removal Orders
Expedited Removal Order
An expedited removal is a special removal order that may be given to noncitizens who are caught at the border. Unlike an judicial removal order, an expedited removal order is issued by an immigration official. In addition, there is no statutory right to an attorney (paid by the non-citizen or paid by the public) during these proceedings. There are very limited forms of review once an expedited removal order has been issued. Typically, the order is issued because (1) the non-citizen had no authorization to enter the country (2) the non-citizen attempted to enter the country by misrepresentation about their immigration status or (3) the non-citizen attempted to enter the U.S. by falsely claiming that the person is a U.S. Citizen.
Stipulated Removal Order
At times, ICE will present individuals in their custody with the option to give up the right to see an immigration judge. The ICE officer requires the individual to sign a paper that says that they knowingly and voluntarily give up their right to see an immigration judge. The ICE officer also signs the document, and gives it to the ICE attorney. The ICE attorney signs the document, and then gives it to the Immigration Judge for signature. It is very dangerous to sign these documents without talking to an attorney. Many people do not know what rights they have, or options to legalize their status and ICE officers are not immigration attorneys.
Administrative Removal
Individuals who have been convicted of an offense designated as an ‘aggravated felony” under the Immigration and Naturalization Act, may be subject to an Administrative Removal. The removal order process is secured by ICE as in the case of the Stipulated Removal, but it is not presented to an Immigration Judge. These orders should not be used to remove Lawful Permanent Residents. Because the “aggravated felony” definition can change over time, and ICE officers are not immigration lawyers, individuals should seek review of the validity of these orders as part of a comprehensive case evaluation.
Reinstated Removal Order
A person who has been ordered to deported, leaves the United States, and returns to the United States without permission, can have their original removal order “reinstated.” Removal is typically automatic, without the right to seek release from immigration detention on a bond. The exception is for individuals who have a reasonably based fear of return to their home country. An individual with a prior order has the right to talk to an asylum officer about their fear of return before they are forcibly returned
Voluntary Departure
An immigration judge can grant a noncitizen in removal proceedings voluntary departure in lieu of an order of removal. Some people choose to leave the country under an order of voluntary departure rather than a removal order to avoid adverse immigration consequences arising from a removal order. There are certain requirements a person must meet to be granted voluntary departure and the law limits the amount of time a person will be granted to leave the country to between 60 and 120 days depending upon when the request for voluntary is made. NOTE: there are severe consequences for failing to comply with an order of voluntary departure. For many people, there is little to no benefit to seeking voluntary departure.
IMMIGRATION DETENTION
Immigration officers have the authority to detain non-citizens in deportation proceedings. Sometimes individuals are released with conditions, such as the payment of bond. Other times, immigration officers refuse bond.
Often releasing a loved one from immigration detention is the most important objective in an immigration case. Our firm offers emergency consultations for individuals detained by immigration officials and their family.
Because there is no immigration detention facility in Idaho, ICE moves quickly to remove Idaho residents to out of state detention facilities. Any effort to seek release before your family member is moved out of state must be taken as soon as possible following arrest.
If possible, bring the following information with you to your consultation to help us locate your loved one:
- Full Name and any Alias
- Date of Birth
- Alien Number (8 or 9 digits, begins with A)
- Date and Location of Arrest
- Immigration and Criminal History (arrests, convictions, deportations, immigration filings)
VISITATION
Some detention facilities are run by the Department of Homeland Security (DHS) and others are run by private contractors such as the private prison company: Correction Corporation of America.
Visitation rules vary by detention center. Visitors should contact the detention center they want to visit to find out about visiting hours and rules. Many centers have dress codes and disallow particular items (cell phones, matches, for example) to be taken into the visitation areas.
The Detention Watch Network is a non-profit group that works in coalition with a variety of groups and agencies working to limit physical detention to cases only where truly necessary and ensuring that those detained are held in humane conditions. The Network maintains a map of detention centers run by both DHS and those run by private contractors. Additional information can be found from the home page at: “Detention Centers: Where are People Detained?” under the “Government Links” tab on the lower right.
IMMIGRATION BOND
If a noncitizen is being held in at the local County Jail on an immigration hold, the immigration police, called the Immigration Custom Enforcement (ICE), will eventually transfer detainees to the nearest immigration detention facility. Since there is no immigration detention facility in Idaho, detainees will be sent to a facility outside of the state. Usually the non-citizen is sent to one of three possible locations including Tacoma, Washington, Eloy, Arizona, and Aurora, Colorado. However, we have recently seen noncitizens sent to a Texas facility, as well. If the detainees are moved to Arizona, Colorado, or Texas, they will go first to Twin Falls and then be transported by plane to the detention facility. Usually detainees are driven to Tacoma, Washington from Boise.
Chance To Be Released On Bond From Within Idaho
At this point it is helpful to have an immigration attorney to ask ICE that the noncitizen who is eligible to be released on bond, be offered the chance to pay the bond before they are moved to out of state. If successful in the effort, then the non-citizen’s family will need to immediately pay the bond to make sure the noncitizen is released from custody before they are moved out of state.
Not everyone is be eligible for release on bond. Some people are subject to mandatory detention. This means that they will have to stay in immigration custody up until the time their case is resolved.
If Bond Is Not Granted In Idaho, A Judge Can Grant Bond
If bond is not offered to the noncitizen while he or she is still in Idaho or if the noncitizen is not able to pay the bond set before the noncitizen is moved, he or she will be moved out of state.
If bond has been set in the case, and the non-citizen’s family or friend pays it after the noncitizen leaves the state, the noncitizen will be released from the detention facility once the bond is paid. For example, if a noncitizen has a $5,000 bond, but it is not paid it until 1 week after the noncitizen is moved, the noncitizen will be released from out of state. The government will not bring the noncitizen back to Idaho, the non-citizen or his family and friends must pay for the passage back to Idaho.
If the noncitizen is not offered a bond in Idaho, the noncitizen can ask a judge in the detention facility to set a bond. Usually, the court in the detention facility will not have time to see the noncitizen about bond for 2 to 3 weeks from the date they arrive at the facility.
Paying The Immigration Bond
Please note that if the noncitizen is granted bond, the non-citizen’s family or friends must be ready to pay the bond as soon as it is granted. This will prevent the noncitizen from being in custody for longer. This is especially important if the noncitizen is offered bond while he or she is still in Idaho. The amount of the bond depends upon the circumstances of the particular individual, including criminal history and ties to the United States.
Only a legal permanent resident or a U.S. citizen can pay the bond. It can be paid by money order, or cashier’s check at the Boise, Idaho Immigration office or any United States immigration office in the country. The individual paying the bond must be at least 18 years old, have a valid government issued identification with photo, provide their social security number and the physical and mailing address of the non-citizen for whom the bond is posted. It is critical that the correct physical and mailing address be provided. The Boise office takes bonds Monday-Friday from 8:00 a.m. to 3:00 p.m. The process takes about one hour.
If the noncitizen or his friends and family cannot afford the bond, then a bond company could help pay the bond using collateral.
Using a Bond Company
See here for a link to a list of bond companies in the area. If you believe you will need the assistance of a bond company, you are encouraged to contact the bond company as soon as possible. Please direct any questions to you have about the requirements of a bond company directly to the bond company.
After Release
After being released, the noncitizen will be able to go home, but the deportation process will go on. A few weeks after first being arrested the noncitizen will receive a letter from the immigration indicating when he or she will have a court hearing. This hearing will be in about four months from the date of the notice and will determine whether the noncitizen can seek any relief from a removal order.