Q&A: Detention and Deportation

July 31, 2000

One of the more traumatic experiences an immigrant or visitor can have with the INS is to be detained and put in deportation proceedings. There are many reasons for which the INS may deport someone. Some of these are well known - entering the country illegally, overstaying a visa, or committing a crime, for example. Other reasons may be not so well known, such as misrepresenting to the government that you are a US citizen, or voting in an election.

In this article, I will and the next several articles, I will cover some of the more frequent questions we get about detention and deportation.

Q .

My husband is being held by the INS for deportation. How can I get him released until his deportation hearing?

You may be able to get him released by posting on bond. A bond is a contract between the person or company posting the bond (the obligor) and the INS. The INS will generally allow an alien's release on bond, unless the alien has certain criminal convictions or are terrorists. The factors that the INS will consider include: the alien's local family ties, prior arrest record, employment, manner of entry in the U.S., character, and financial ability to post bond.

You may post the bond by paying cash, postal money order, cashier's check, or US bonds or notes. Alternatively, you may get a "surety bond" from a private company, that will post the bond for you in exchange for a percentage of the bond they post.

Once the INS allows the release, they may demand the obligor to have the alien appear for a hearing, interview or removal from the country. The INS will do this by sending the obligor an INS Form I-340 (Notice to Obligor to Deliver Alien).

If the alien does not show up for INS interviews or depart the country on time, the person posting the bond may lose the money paid for the bond.

I am have received a deportation order. Is there any way for me to get avoid deportation at this point.

Depending upon your situation, you may be able to avoid deportation. The law Immigration and Nationality Act gives many types of "relief from deportation."

These types of relief are called "discretionary relief." This means that the alien does not have a right to the relief, only the right to ask for it. Some of the more common types are discussed below.

Cancellation of Removal. This type of relief cancels or pardons the removal order. It may be available to permanent residents, and non-permanent residents, who meet certain qualifications. The qualifications are as follows.

For Permanent Residents, the alien must show: (1) he has been an alien lawfully admitted for permanent residence status for not less than five years; (2) he has resided in the U.S. continuously for seven years after having been admitted in any status; (3) he has not been convicted of an "aggravated felony."

For Non-Permanent Residents (undocumented, non-immigrants, etc.) the alien must show: (1) he has been physically present in the U.S. for ten years preceding the date of the request; (2) he has been a person of good moral character during those ten years; (3) he has not been convicted of certain offenses related to illegal drugs, crimes of "moral turpitude," and document fraud; and (4) that removal would result in "exceptional and extremely unusual hardship" to the alien's spouse, parent, or child who is a U.S. citizen or a lawful permanent resident.

Waivers. There are many grounds of inadmissibility in the law. A common ground of removal is that an alien was inadmissible when he entered the U.S. If an alien's removal proceedings are a result of being found inadmissible for certain reasons - such as for document fraud -- he may be eligible for a waiver of inadmissibility.

Adjustment of Status. A removable alien who is the parent, spouse, widow or child of a U.S. citizen may be eligible to apply to the Judge to adjust his status to that of a lawful permanent resident. Also qualified to apply for adjustment of status is any alien whose priority date for permanent residence is "current". Certain types of aliens are ineligible for this, such as some aliens who have obtained conditional residency through marriage.

Asylum and Withholding of Deportation. Those who have a well-founded fear of persecution if they return to their home country may apply for asylum if their fear is based on political opinion, religious belief, nationality, race, or membership in a particular social group. If a person is granted asylum, after one year they may apply for permanent resident status. Withholding of deportation is similar to asylum. However, it differs in two important respects: (1) It does not permit the alien to apply for permanent residence, and (2) it only prohibits the INS from deporting the alien to one particular country.

Voluntary Departure. This form of relief is available to most aliens, and is generally requested after all else fails. It is a request that the alien be allowed to leave without having the stigma and the legal impediments to return to the United States imposed by removal. Voluntary Departure may be requested at many different stages of the removal proceeding. Eligibility for voluntary departure depends upon the stage at which it is requested. In general, voluntary departure is available to aliens who are not being removed for aggravated felony convictions, who have the means to pay for their departure from the U.S., who agree to depart within a period of time granted by the judge, and who can establish good moral character during the previous five-year period.

These are some of the more common types of relief available. Depending upon the type of relief requested, there are various requirements that must be fulfilled. But, aside from these requirements, the judge will base his or her decision on the "equities" of the case. This means the judge will look at the alien's good character, his past behavior, his dependents, etc. - essentially all the facts surrounding the alien's situation - to determine if it would be fair to give the alien the relief requested.

FOR MORE INFORMATION:

Contact John Byrley at tel: 410-719-1501.