DEPORTATION / REMOVAL
Under pre-1996 immigration law, people who could prove that they have been residing continuously in the U.S. for at least seven years, had good moral character and would suffer extreme hardship if they were deported could qualify for suspension of deportation and a green card. They could win suspension of deportation by showing extreme hardship to themselves or to a close family member who was a U.S. citizen or permanent resident. However, you can no longer apply for suspension of deportation under the old immigration law unless you are from Guatemala or El Salvador.
Under the 1996 immigration law, you can apply for what is now called “cancellation of removal” and obtain a green card if you can prove that you have been living in the U.S. continuously for at least ten years, have good moral character, and that a close relative who is a U.S. citizen or a lawful permanent resident would suffer extreme hardship if you were deported or removed from the United States.
In order to qualify for cancellation of removal you need to wait another few years until you have been in the U.S. for at least 10 years. It is not enough to have been living in the U.S. for ten years, you have to prove it with documentation. You will have to present documents such as bank statements, rent receipts, utility bills, etc., for each year that you have been residing in the U.S.
Second, the fact that you have been paying income taxes each year helps to show that you have good moral character. Also, the fact that you have never been in trouble with the law helps to demonstrate your good moral character. Additionally, if you are involved in community organizations and activities that help the community, this will help to prove that you have good moral character.
Third, under the rules for cancellation of removal, the hardship to yourself if you had to return to your home country is no longer considered as a factor. Only the hardship to your U.S. citizen children or spouse would be considered as important. If your children are very young and are in good health, an immigration judge would probably find that they could return to your home country without suffering extreme and unusual hardship. Young children are thought to have an easier time adjusting to a new environment than older children. Older children who have already adjusted to the American school system, and can speak, read and write only in English and who do not know the language of the home country would suffer much more than younger children if forced to return to their parents’ home country. If you can prove that you would probably be killed if returned to your home country, this would be important only in so far as it impacts on your young children. Thus, the psychological effect of losing their parent and the financial impact of losing their main source of financial support would be considered. Of course, if the children were also in danger of being killed if they were returned to your home country, this would show extreme hardship.
As of June 24, 2002, INS had detained a total of 752 individuals on immigration violations since September 11th in connection with the investigation into the terrorist attacks. Of these, 81 are currently being detained. The rest have been released on bond pending resolution of their immigration charges after they were determined to have no links to the investigation or to terrorist organizations, or their immigration proceedings have been completed and they have been released or removed. Of the 81 who remain in USICE detention, 73 have had a removal (deportation) hearing. Thirty-eight have final orders of removal, and the USICE is trying to remove (deport) them as soon as possible.
As of May 29, 2002, 611 individuals detained by USICE have been subject to closed hearings pursuant to a directive issued by the Chief Immigration Judge on September 21, 2001.
However, most individuals in INS detention are not suspected of or charged with being involved in terrorism. Many are asylum applicants, minor children, permanent residents who have completed a criminal sentence and others charged with various immigration violations.
If USICE believes that you are not legally in the United States, USICE will serve you with a Notice to Appear, charging you with specific immigration violations and ordering you to appear in Immigration Court. Previously called deportation or exclusion proceedings, immigration court proceedings are now called removal proceedings. Once you appear before the Immigration Judge, the judge will determine whether you are removable (deportable). If you are determined to be removable from the U.S., you may request relief from removal (deportation), such as asylum, withholding of removal, cancellation of removal or voluntary departure. If you are a long-time permanent resident, and have a criminal conviction dating from before April 1996, you may also be eligible for 212(c) relief, which is a waiver of deportation.
If you are in removal proceedings, you have a right to be represented by an attorney at your own expense. You also have a right to a court-appointed interpreter, if you are unable to speak English fluently. You have a right to present evidence in your favor and to cross-examine witnesses.
Should you lose your case before the Immigration Judge, you have the right to appeal to the Board of Immigration Appeals (BIA), and may remain in the U.S. while the appeal is pending. If the BIA denies your case, you will be under a final order of removal (deportation), and USICE may then arrest and deport you. However, you will have 30 days from the date of the BIA decision to go into federal court for yet another appeal and to stay your deportation.
In order for USICE to deport someone, USICE must obtain a valid travel document and the home country must be willing to accept him or her. USICE has difficulty deporting nationals of certain countries, and thus those individuals may spend a great deal of time in USICE custody while under a final order of deportation, while USICE is trying to deport them. If an individual is in USICE custody for more than 90 days while under a final order of deportation and USICE is unable to deport him or her, that individual may apply for release.
If you have a final order of removal or deportation against you, local police may now arrest you on your removal or deportation order. This is a change from past practice, whereby only immigration officers could execute deportation orders. A new federal rule, effective August 23, 2002, permits local police officers to exercise Federal immigration enforcement authority, and arrest aliens on deportation orders.