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Experienced Removal Proceedings

Understand the removal process and the forms of relief that may allow you to remain in the United States.

What Are Removal Proceedings?

Removal proceedings are civil administrative proceedings to determine whether a person may remain in the US. Lawful permanent residents may be placed into removal proceedings, and people in the US without permission may also be placed into removal proceedings. Removal proceedings used to be called deportation proceedings, and many people still use the term “deportation.”

Removal proceedings are similar to other courtroom settings. There is an immigration judge, an attorney representing the government (“ICE attorney”), and a translator. In most cases, the ICE attorney is presenting the government’s position, which is that the person has done something wrong and is “removable” from the US. The person is given an opportunity to submit applications for relief from removal and may be able to stay in the US.

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How Does One Get Into Removal Proceedings?

There are several ways a person winds up in removal proceedings.

The 3 most common ways are:

1. Criminal Conviction

A person commits a crime, US Immigration and Customs Enforcement (“ICE”) learns of the crime, and then decides to place the person into removal proceedings.

2. Denied Protection Application

A person has applied for political asylum and/or withholding of removal and/or protection under the Convention Against Torture ("CAT"), and the application has been denied.

3. No Permission to Be in the U.S.

The person is caught, and it is determined that the person has no permission to be in the US. An example of this would be a worksite raid.

Immigration lawyer with clients

An Example to Describe How the Removal Process Works

Elvis is a lawful permanent resident of the US. He was arrested and charged with domestic violence for hitting his spouse in the head with a bowling ball. He is convicted in state court and is sentenced to 2 years in prison.

Prior to his release from state prison, ICE requests that Elvis be turned over to them so that they may initiate removal proceedings against him. On the day Elvis is to be released from state prison, ICE shows up and takes Elvis into ICE custody.

Elvis is now in a jail run by ICE. ICE has the discretion to set a bond so that Elvis may be released from custody as he goes through the removal process. If ICE does not approve a bond or sets the bond amount too high, Elvis has a right to a bond hearing before an immigration judge. The immigration judge will determine whether Elvis is a danger to the community and/or a flight risk. If the judge rules in Elvis’ favor and grants bond, then Elvis may be released from custody. If the bond request is denied, Elvis may appeal but will remain in custody during the appeal process.

After the bond hearing, the immigration judge will conduct a master calendar hearing. Elvis will be served a Notice to Appear (“NTA”) which is the charging document (similar to a criminal complaint). The NTA explains why the government wants to remove Elvis from the US. Elvis may admit to or deny the charges against him.

If it is determined that Elvis is removable, then the immigration judge will schedule an individual hearing. Applications for relief must be filed at least 15 days before this hearing. The most common applications for relief include:

  1. Cancellation of Removal for lawful permanent residents;
  2. Cancellation of Removal for non-lawful permanent residents;
  3. Adjustment of Status;
  4. Waivers for criminal conduct.
  5. Political asylum and/or withholding of removal and/or protection under the Convention Against Torture (“CAT”)

In addition, denied applications for political asylum and/or withholding of removal and/or protection under the Convention Against Torture ("CAT") may also be renewed before the immigration judge.

At the individual hearing, Elvis will present his case to the immigration judge. Testimony will be taken from Elvis and any witnesses he wishes to call. The ICE attorney will also be able to ask questions of Elvis and any of his witnesses. If the ICE attorney calls witnesses, Elvis will also be able to ask questions of those witnesses.

At the end of the hearing, the immigration judge will usually make a decision. In certain circumstances, the immigration judge may issue a written decision at a later time. If the immigration judge grants any of Elvis’ applications for relief, then Elvis may remain in the US. The ICE attorney has the right to appeal the decision to the Board of Immigration Appeals (“BIA”). If the immigration judge denies all applications for relief, then in most cases, Elvis may also appeal the decision to the BIA.

This example is to provide you with a general overview of the removal process. Scroll down to review the most common applications for relief.

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Common Applications for Relief

Cancellation of Removal for Lawful Permanent Residents

The Attorney General may cancel removal in the case of a person who is inadmissible or deportable from the United States if the person:

  • Has been lawfully admitted for permanent residence for not less than 5 years,
  • Has resided in the United States continuously for 7 years after having been admitted in any status, and
  • Has not been convicted of any aggravated felony.

Definition of Aggravated Felonies

  1. Alien smuggling: smuggling, harboring, or transporting of aliens except for a first offense in which the person smuggled was the parent, spouse, or child;
  2. Attempt to commit an aggravated felony;
  3. Bribery of a witness—if the term of imprisonment is at least one year;
  4. Burglary—if the term of imprisonment is at least one year;
  5. Child pornography;
  6. Commercial bribery—if the term of imprisonment is at least one year;
  7. Conspiracy to commit an aggravated felony;
  8. Counterfeiting—if the term of imprisonment is at least one year;
  9. Crime of violence as defined under 18 USC 16 resulting in a term of at least one year imprisonment, if it was not a “purely political offense;”
  10. Destructive devices—trafficking in destructive devices such as bombs or grenades;
  11. Drug offenses—any offense generally considered to be “drug trafficking,” plus cited federal drug offenses and analogous felony state offenses;
  12. Failure to appear to serve a sentence if the underlying offense is punishable by a term of 5 years or to face charges if the underlying offense is punishable by 2 years
  13. False documents—using or creating false documents, if the term of imprisonment is at least twelve months, except for the first offense, which was committed for the purpose of aiding the person’s spouse, child, or parent;
  14. Firearms—trafficking in firearms, plus several federal crimes relating to firearms and state analogues;
  15. Forgery—if the term of imprisonment is at least one year;
  16. Fraud or deceit offense if the loss to the victim exceeds $10,000;
  17. Illegal re-entry after deportation or removal for conviction of an aggravated felony;
  18. Money laundering—money laundering and monetary transactions from illegally derived funds if the amount of funds exceeds $10,000, and offenses such as fraud and tax evasion if the amount exceeds $10,000;
  19. Murder;
  20. National defense—offenses relating to the national defense, such as gathering or transmitting national defense information or disclosure of classified information;
  21. Obstruction of justice if the term of imprisonment is at least one year;
  22. Perjury or subornation of perjury—if the term of imprisonment is at least one year;
  23. Prostitution—offenses such as running a prostitution business;
  24. Ransom demand—an offense relating to the demand for or receipt of ransom;
  25. Rape;
  26. Receipt of stolen property if the term of imprisonment is at least one year;
  27. Revealing the identity of an undercover agent;
  28. RICO offenses—if the offense is punishable with a one-year sentence;
  29. Sabotage;
  30. Sexual abuse of a minor;
  31. Slavery—offenses relating to peonage, slavery, and involuntary servitude;
  32. Tax evasion if the loss to the government exceeds $10,000;
  33. Theft—if the term of imprisonment is at least one year;
  34. Trafficking in vehicles with altered identification numbers if the term of imprisonment is at least one year;
  35. Treason—federal offenses relating to national defense and treason.

One must avoid an aggravated felony conviction, as the conviction will eliminate almost all forms of immigration relief.

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Cancellation of Removal for Certain Non-Permanent Residents

The Attorney General may cancel removal of, and adjust to the status of a person lawfully admitted for permanent residence, a person who is inadmissible or deportable from the United States if the person:

  1. Has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
  2. Has been a person of good moral character during such period;
  3. Has not been convicted of certain offenses; and
  4. Establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

Special Cancellation of Removal for Battered Spouses or Children

The Attorney General may cancel removal of, and adjust to the status of a person lawfully admitted for permanent residence, a person who is inadmissible or deportable from the United States if the person demonstrates that:

  1. The person has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen (or is the parent of a child of a United States citizen, and the child has been battered or subjected to extreme cruelty by such a citizen parent);
  2. The person has been battered or subjected to extreme cruelty by a spouse or parent who is or was a lawful permanent resident (or is the parent of a child of a person who is or was a lawful permanent resident and the child has been battered or subjected to extreme cruelty by such permanent resident parent);
  3. The person has been battered or subjected to extreme cruelty by a United States citizen or lawful permanent resident whom the person intended to marry, but whose marriage is not legitimate because of that United States citizen's or lawful permanent resident's bigamy;
  4. The person has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application, and the issuance of a charging document for removal proceedings shall not toll the 3-year period of continuous physical presence in the United States;
  5. The person has been a person of good moral character during such period;
  6. The person has not been convicted of certain crimes; and
  7. The removal would result in extreme hardship to the person, the person's child, or the person's parent.
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Adjustment of Status

Adjustment of Status is a way to obtain lawful permanent resident status. In most cases, the person in removal proceedings (“the respondent”) has a qualifying relative who is able to file an immigrant petition on the respondent’s behalf. Other bases for filing for adjustment of Status include:

  1. Employment-based petitions
  2. Special immigrant religious workers
  3. Asylee and refugee status
  4. Human Trafficking and Crime Victims
  5. Victims of Abuse

Waivers for Criminal Conduct

Certain people may not be allowed to enter or obtain status in the United States because they have done something wrong. The legal term is “inadmissible.” These people may overcome the ground of inadmissibility if they are eligible to apply for and receive a waiver.

US Citizenship & Immigration Services, in its administration of waiver laws and policies, seeks to:

  1. Promote family unity and provide humanitarian results;
  2. Provide relief to refugees, asylees, victims of human trafficking [1] and certain criminal acts [2], and other humanitarian and public interest applicants who seek protection or permanent residency in the United States;
  3. Advance the national interest by allowing aliens to be admitted to the United States if such admission could benefit the welfare of the country;
  4. Ensure public health and safety concerns are met by requiring that applicants satisfy all medical requirements prior to admission or, if admitted, seek any necessary treatment; and
  5. Weigh public safety and national security concerns against the social and humanitarian benefits of granting admission to an alien.
  6. Considerations of family unity, humanitarian concerns, public and national interest, and national security may differ depending on the specific waiver an applicant is seeking.
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Political Asylum and/or Withholding of Removal and/or Protection Under the Convention Against Torture (“CAT”)

Political Asylum

Every year people come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to the following:

  • Race
  • Religion
  • Nationality
  • Membership in a particular social group
  • Political opinion

Withholding of Removal

Withholding of removal is a special type of order issued by an immigration judge to a person who demonstrates more than a 50% chance that they will be persecuted in their home country on account of their race, religion, nationality, membership in a particular social group, or political opinion. Like asylum, withholding of removal protects a person from being deported to a country where they fear persecution.

Convention Against Torture (“CAT”)

The Convention Against Torture relief, commonly called CAT, is an extremely rare grant of protection from deportation that an immigration judge grants for individuals who fear torture in their home country. To qualify for CAT, an applicant must demonstrate a clear probability (more than a 50% chance) that they will be tortured either directly by or with the acquiescence of the government of their country of origin. This is an extremely difficult legal showing to make, and consequently, only about 2-3% of all applications for CAT are granted across the country.

Bonds

In the immigration field, when we hear the term “bond,” we usually think “immigration bond,” which is money paid to secure a detained foreign national's release from jail. The bond serves as a guarantee to the government that, once out of jail, the bonded individual will attend all immigration hearings. If the individual does not attend a hearing, the bond money will be kept by the government.

A visa bond serves as a “guarantee” that if a visa applicant receives a visa, the applicant will abide by the visa rules, including returning home before the visa expires. On November 24, 2020, the State Department created a temporary pilot program to assess the agency’s technical ability to require a visa bond from visitor visa applicants from countries with a 10% or higher overstay rate in the visitor visa category. The pilot program's stated purpose is to assess the operational feasibility of posting, processing, and discharging visa bonds in coordination with the Department of Homeland Security (“DHS”). The pilot program will end on June 24, 2021.

The temporary final rule applies the pilot program to applicants seeking a visitor visa who meet the following criteria:

  1. The applicant is from a country with a high rate of visitor overstay based on 2019 DHS data, including applicants from Afghanistan, Angola, Bhutan, Burkina Faso, Chad, the Democratic Republic of the Congo (Kinshasa); Djibouti, Eritrea, the Gambia, Guinea-Bissau, Iran, Laos, Liberia, Libya, Mauritania, Papua New Guinea, São Tomé and Principe, Sudan, Syria, and Yemen;
  2. The applicant is subject to a ground of inadmissibility; and
  3. The applicant possesses an approved waiver of the ground of inadmissibility.

Individuals who are inadmissible are not permitted by law to enter or remain in the United States. The general categories of inadmissibility include health, criminal activity, national security, public charge, lack of labor certification (if required), fraud and misrepresentation, prior removals, unlawful presence in the United States, and several miscellaneous categories. For certain grounds of inadmissibility, it may be possible for a person to obtain a waiver of that inadmissibility.

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