Can a noncitizen with temporary status in the United States be detained by Immigration authorities?
Yes, if the noncitizen committed a violation of an Immigration Law that subjects the noncitizen to removal from the United States. Click here for a discussion of the different basis for removal for noncitizens with status.
Can a Legal Permanent Resident be detained by Immigration authorities?
Yes, similar to a noncitizen with temporary status, an Immigration Law violation that subjects a Legal Permanent Resident to removal will grant authority to an Immigration officer to detain the Legal Permanent Resident. Click here for a discussion of the different ground for removal for noncitizens with status.
Can a noncitizen without any status avoid being detained by immigration authorities if the noncitizen did not commit any Immigration Law Violation?
No, the simple fact that such a noncitizen has no permission to be present in the United States exposes the noncitizen to potential detention and removal from the United States.
What should a noncitizen know when detained by Immigration Authorities?
Immigration officers with authority to detain a noncitizen are known as Immigration Customs Enforcement, “ICE” officers.
As stated before, the noncitizen is likely being detained because ICE became aware that the noncitizen is present in the United States without status or that the noncitizen has violated an immigration law that has placed the noncitizen’s status in the United States in Jeopardy. Once detained, ICE will issue and serve what is called a Notice to Appear, “NTA” which is served on the noncitizen and filed with the Immigration Court initiating removal proceedings. Like a criminal case, noncitizens when detained have a right to remain silent and have a right to be represented by an attorney.
Does that mean that a noncitizen will be assigned a attorney to represent the noncitizen in the removal case?
No, the right to an attorney means that the noncitizen has the right to hire an attorney, but the government is not obligated to pay for attorney to represent the noncitizen like in criminal cases.
What is an NTA? What is the purpose of the Removal Proceeding?
An NTA is the initial charging document that serves the purpose of informing the noncitizen of the Immigration Law Violation serving the basis for removal and commences removal proceedings before an Immigration Court. It is similar to a criminal complaint, or citation ordering an accused individual to appear in criminal court to answer for a criminal law violation. In the Removal Proceeding, the charge against the noncitizen can be challenged or can be admitted. However, different from a criminal case, there is no right to a trial by jury. The trial in the Removal Proceedings context is the Immigration Judge examining the evidence in support of the allegation of the violation of an immigration law where the Immigration Judge makes a determination of guilt without the formalities that exist in a criminal court proceeding or trial.
Especially for cases involving noncitizens without status, the issue of whether a noncitizen is removable is typically decided by an Immigration Judge at the first hearing known as the Master Calendar hearing because as stated it is usually not difficult for the government to prove that a noncitizen is present in the United States without permission. However, there are some cases especially involving noncitizens with status who committed a crime violating Immigration Law where the issue is not as clear and will require further written and oral argument to aid the Immigration Judge in deciding whether the noncitizen should be subject to removal. For a discussion of the different reasons for removal and potential challenges to removal click here.
Fortunately, unlike a criminal proceeding, if the noncitizen is found to be removable, the case is not over. The noncitizen maybe eligible to apply for an application for relief from removal which will give the Immigration Judge the authority to in essence forgive the violation and allow a noncitizen to remain in the United States under the previous status or grant the noncitizen a new permanent status to remain in the United States. This stage of the case is recognized as the trial date for the case which is known as the Merits Hearing or Individual Hearing. For a discussion of the different forms of relief from removal click here.
What happens if I ignore an NTA?
There can be serious consequences if a noncitizen ignores an NTA. An NTA will include a date and time to appear in court. Because the hearing date on the NTA is frequently changed it is important that the noncitizen keep the address on record with the court current to receive any follow up notice. If the date of hearing on the NTA is ignored or if the noncitizen fails to appear because a follow up hearing date is sent to an address where the noncitizen no longer resides will result in the Immigration Court issuing an order of removal in the absence of the noncitizen. With this removal order, an ICE officer is authorized to arrest the noncitizen assuming the noncitizen is not detained and physically remove the noncitizen from the United States where the noncitizen will be barred for a total period of 10 years from being allowed to return or seek any benefit from the United States. Fortunately, if a noncitizen removed is able to qualify for a green card, the noncitizen can seek a waiver of this 10 year period however if the noncitizen ignored the NTA or in other words failed to attend the scheduled hearing, the noncitizen will have a 5 year period of being banned where there is no waiver for the 5 years.
How long does the removal/deportation process take? Will the noncitizen have to stay in prison?
Under current Immigration Law Enforcement policies, upon detention, ICE will make an initial determination whether the noncitizen should be released, released with certain restrictions or released upon payment of a certain bond amount.
You can find a full discussion of Removal and Deportation by clicking here.
If the noncitizen is released, removal proceedings will continue at an Immigration Court located closest to where the noncitizen lives.
If the noncitizen is not released by ICE, the noncitizen will be detained in a jail or detention facility controlled by the Department of Homeland Security where the noncitizen will have to file a motion for bond determination before an Immigration Judge. The Immigration Judge will then decide whether to release the noncitizen. Click on any one of the following posts addressing crimes that disqualify a noncitizen from release on bond.
- What makes a non citizen inadmissible or deportable?
- What criminal convictions create immigration consequences making a noncitizen inadmissible or deportable? What is a Crime of Moral Turpitude? What is a CIMT?
- What are the immigration consequences Associated with an Aggravated Felony?
- What are the immigration consequences Associated with Drug Convictions?
- What are the immigration consequences Associated with Crimes of Domestic Violence?
- What are the immigration consequences Associated with Fire Arms Offenses?
If the noncitizen is released and the noncitizen qualifies for relief from removal, the process will take approximately one year for a judge to issues a final decision. If the noncitizen loses the case, the noncitizen will have a right to bring one appeal before the Board of Immigration Appeals, “BIA” where that appeal may take 6 months to 1 year. Review the Appeals section in our Removal Proceedings Page found by clicking here.
If the noncitizen is not released from detention, the judge will attempt to complete the case within a handful of months. An appeal of the judge’s decision to the BIA will likely be decided in another few months.
Is there any way I can defend against being deported?
There are more options to challenge removal for a noncitizen with status such as a Legal Permanent Resident when compared to a noncitizen without any status. The reason is that in a case involving a noncitizen with status, it is more difficult for the government to prove that the noncitizen with status violated an Immigration Law while removal of a noncitizen without status can be simply based on the noncitizen being present in the United States without permission. However, this doesn’t mean that challenging a removal charge against a noncitizen without status is not possible. For a more detailed discussion addressing the different basis for removal including ways to challenging removal by clicking here.
If a judge finds that I am removable, does the case end with my deportation/removal from the United States?
Not necessarily. Depending on a noncitizen’s circumstances, the noncitizen maybe eligible for one of various applications that will stop removal if approved. A discussion of the various forms of relief from removal including the type of status granted a noncitizen is available by clicking here.
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