Understanding the initial and important critical steps of deportation cases in the United States

Despite the fact that legally speaking “Deportation” is now known as “Removal”, deportation is the most common term and the most widely used therefore, for the purposes of this brief discussion I will be using the term as commonly known, deportation.

Often, I come across individuals who have been deported from the United States, and their questions, most assured, do pertain to the questions of (1) whether they have the capacity to return and (2) how to manage the procedure of returning to the United States.  

My first line of inquiry addresses the circumstances under which they were removed and more specifically, what infringement (usually a crime) triggered a removal hearing.  The type and nature of the crime that triggered the deportation proceeding are critical to evaluate because it means that the alien (anyone not a U.S Citizen) may have more or fewer reliefs available to them in order to increase the chance of remaining in the United States.  The second line of inquiry is whether they went through a deportation case, were represented by counsel, and whether they themselves understood the nature of what was happening in the case.  The third line of verbal inquiry addresses what reliefs against deportation they applied for in the case.

Normally, a client comes in for a consultation and we will, as part of office routine and professional due diligence, request the files from both the alien’s immigration case and criminal case history.   The first thing we attempt to look to is the criminal history.  We cross-reference the criminal history with the Department of Justice Charging document to establish consistency between the two matters (The government may make certain mistakes or even misinterpretations of the law or fact in the charging document).  This DOJ document is also commonly known as the NTA (Notice to Appear).  In my opinion, this is one of the first most critical stages at the outset of the case. Ultimately and ideally, the allegations as charged should, in summation, be tantamount to the charge of removability.  Once that is analyzed the alien must apply for the available relief that he may be entitled to. The relief is the grounds or arguments for not being removed from the United States.  Most popular reliefs are voluntary departure, cancellation of removal, adjustment of status, asylum, withholding of removal, and convention against torture. These are the most popular.

Sometimes, it has been seen that, depending on the nature of the charge that triggered the removal hearing, one may even be able to request prosecutorial discretion from the District Counsel’s office by asking the government to refrain from prosecuting its case against the alien.  If this is done then the matter could go away in such a premature stage of the case and be terminated. If the alien is a permanent resident he may have a new chance at citizenship, which will ultimately render the alien incapable of being subject to deportation in the future. 

Additionally, if an alien concedes deportability, it may be strategic that he should also file all other necessary applications especially to make an application during the pendency of the case for permission to return after deportation in the event that the alien is in fact removed.  If that application is adjudicated prior to being removed one would not have to adjudicate it after leaving.

All in all….pay attention and do not lose your ability to put yourself in a better position to (a) fight your case (b)be successful at challenges to deportability; or (c)preserve your rights to successfully return, if deported. 

By Nigel E. Blackman, Esq.