There are many reasons people are placed into deportation or removal proceedings. Because of the complexity of the immigration laws and the procedural rules in Immigration Court, it is important to obtain legal representation early on in this type of case.
Prior to April 1, 1997, an alien was either placed in exclusion or deportation proceedings, depending on whether the alien made an entry into the United States. However, the Immigration laws changed in 1996, and the new laws abolished the term "entry" and replaced it with the term "admission." Additionally, proceedings were no longer referred to as "exclusion or deportation" proceedings. Instead, the proceedings are now collectively referred to as "removal proceedings."
In a removal proceeding, the Immigration Judge makes a determination of whether the alien should be removed based on a ground of "inadmissibility," or a ground of "deportability." This determination generally turns on whether the alien has been "admitted" into the United States. For instance, if an alien is placed in removal proceedings and he has not been "admitted," he will be charged with a ground of "inadmissibility" pursuant to section 212 of the Immigration and Nationality Act. However, if the alien has been "admitted" and is placed in removal proceedings, he will be charged with a ground of "deportability" under section 237 of the Act.
Removal proceedings against an alien are initiated when the U.S. Citizenship and Immigration Services (USCIS) files the Notice to Appear (NTA) with the Immigration Court. On the NTA, the USCIS will lodge the charge of removability against the alien. Once the alien is placed in removal proceedings, the alien will have an opportunity to appear before the Immigration Court to challenge the charge of removability and apply for various forms of relief such as cancellation of removal, waivers for charges of inadmissibility, adjustment of status, asylum, withholding of removal, protection under the Convention Against Torture and voluntary departure. Eligibility for each of the listed relief varies according to the statute, the charge of removability lodged, and the personal situation of each alien.
A. Grounds of Inadmissibility
The following grounds of inadmissibility under section 212 of the Act are the ones most frequently charged on the NTA in removal proceedings:
- Crimes Involving Moral Turpitude (CIMT);
- Drug Crimes;
- Controlled Substance Traffickers;
- Multiple Criminal Convictions
- Two or more non-political offenses;
- Confinement to five years or more;
- Regardless of whether or not convictions occurred in a single trial or scheme of misconduct;
- Aliens Present Without Permission or Parole
- The alien has the burden of proving admission;
- EXCEPTION: Battered women and children are not subject to removal if present without admission or parole and can meet the requirement to self-petition. INA § 212(a)(6)(A)(ii);
- Alien Smugglers;
- Lack of Documentation upon attempted admission;
- Aliens Unlawfully Present in the U.S.
- Minors, asylum applicants, family unity beneficiaries, battered women and children are not inadmissible.
- An alien who is the spouse, son, or daughter of a U.S. citizen or lawful permanent resident may apply for a waiver if he can show that the qualifying relative will suffer extreme hardship if the waiver is not granted.
B. Grounds of Deportability
The following are charges of deportability pursuant to section 237 of the Act that are commonly lodged by the USCIS on the NTA:
- Inadmissible at time of admission or adjustment of status;
- Violation of non-immigrant status;
- Termination of conditional permanent residence
- This occurs when the alien and his/spouse fails to file a joint petition to remove the condition at the end of the 2 years subsequent to becoming a conditional permanent resident;
- Marriage Fraud;
- Conviction of Crime Involving Moral Turpitude (CIMT) within 5 years of admission where the sentence imposed may have been for 1 year or more;
- Two (2) CIMT Convictions
- Not arising out of a single scheme of misconduct;
- Requires separate criminal acts;
- Aggravated Felony;
- Controlled Substance Conviction;
- Drug Abusers and addicts deportable at any time after admission;
- Firearms Offenses;
- Crimes of Domestic Violence, Stalking, and Violations of Protection Orders.