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Deportation & Removal Defense

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NEW JERSEY DEPORTATION & REMOVAL LAWYER

Deportation Defense in New York & New Jersey

Have you have received a Notice to Appear for a deportation/removal case in immigration court? Is the government trying to remove you from the U.S.? If so, you should know you have rights regardless of your situation. Review our FAQ’s below to see how we can help!

One of the most common calls we receive are from people who call and say “My spouse or friend was detained by ICE. Can you help?” The answer is always yes, we can. However, relief from deportation depends on several factors.

These factors include:

  • Length of time in U.S.
  • Manner of entry
  • Criminal history
  • Immigration status
  • Family situation
  • Prior immigration encounters or border crossings
  • Whether they’re charged as being inadmissible vs. removable

Contact a New Jersey Deportation Lawyer Today

We offer initial in-office consultations or personal visits to detainees in the New Jersey and New York metro area. We have the expertise necessary to review and present all available options and will fight for your rights. Reach out to The Law Offices of Lloyd E. Bennett Esq., P.C. to speak with an attorney about your situation. We routinely represent immigrants in removal proceedings before the Executive Office of Immigration Review (EOIR).

Contact our New Jersey deportation defense firm online or call (800) 909-8129 to request a consultation with a deportation attorney. Services are available in Spanish.

Frequently Asked Deportation & Removal Questions

Do I Have the Right to Hire an Attorney?

Yes, you have the right to hire an attorney who will represent you. Unfortunately, unlike criminal court, there is no right to a free lawyer in immigration court. If you find yourself facing a deportation action, you should contact an experienced deportation lawyer to defend you and help you stay in the United States as soon as possible. We can determine your options and come up with a strategy to fight your charge and prevent your deportation.

Call immediately for a consultation with a deportation attorney with substantial experience in Immigration Court.

What If I Cannot Afford an Attorney? Will One Be Appointed for Me?

Unfortunately, while you have the right to an attorney, the government will not appoint one for you. You must hire private counsel to help.

What Is a Deportation Proceeding?

A deportation proceeding is the process of removing you from the United States and sending you back to your country of origin. There is no timeline as to how long the process will take because it varies for everyone. Whether you will be deported or have the right to remain in the United States will be determined in immigration court. These hearings are called “removal proceedings,” and they take place in the Immigration Courts in various cities throughout the U.S.

The hearings are conducted by an immigration judge and will involve a government lawyer from the Department of Homeland Security and a lawyer representing yourself.

How Does a Deportation/Removal Proceedings Start?

The process begins when you receive a Notice to Appear (NTA), which is a charging document. The notice will most likely contain a time and place for you to appear. Immigration court proceedings are complicated, and you should have an immigration attorney with you when your case is due for a hearing.

I Was Served with Notice to Appear (NTA)—What Is This?

The Department of Homeland Security typically issues a NTA to an individual for one or more of the following reasons:

  • You were initially in the United States legally, but your visa has since expired, leaving you in the United States without any lawful status;
  • You are a green card holder or a non-citizen who was found guilty of a serious crime;
  • You entered the United States without inspection, or in other words, you entered illegally;
  • You filed an application for an immigration benefit and the application was denied;
  • You committed a crime and traveled and reentered the U.S.;
  • You committed a crime and were detained by immigration after arrest;
  • A crime was noticed during a review of an application;
  • An immigration officer encountered you during an enforcement action and found you were in the U.S. illegally.

The NTA, will list the reasons why the government is trying to remove you from the U.S. Typically, the NTA will charge one of the grounds of removability under INA 237 (a) for having committed an aggravated felony or will charge a ground of inadmissibility to enter the U.S. under INA 212 (a) for having committed a crime of moral turpitude.

These are the reasons why the government believe they you should be deported. The NTA will often also include details about what court to appear in for your hearings, the date and time of your first hearing, as well as the following information:

  • The legal authority that the government is relying on to try to deport you
  • The fact that you have a right to hire an attorney to represent you at your hearings
  • The consequences you will face for failing to appear in immigration court
  • The requirement that you provide the immigration court with your current address and phone number

Remember, you have the right to work with a deportation lawyer to defend you and potentially keep you in the United States. Exercise this right by working with an experienced immigration attorney.

What Can I Expect When I Go to Immigration Court?

The Notice to Appear in Immigration Court will contain a date for you to appear. Your first meeting is called a Master Calendar Hearing. It is at this initial hearing in which a judge will review the case and listen to arguments from counsel about the relief you may be eligible for. If you need more time to hire a lawyer, this is the time to inform the judge. The judge will give you more time, assuming this is your first appearance. When you return with counsel and eligibility is determined, the judge will schedule an Individual Hearing, which is the trial date to prove eligibility for the relief you are requesting.

At the Individual Hearing, the judge will consider documents and testimony needed to prove the claim for the relief requested. The judge will decide after a careful review of your documents and your positive and negative factors.

Some of the factors the judge will consider are as follows:

Positive Factors

  • Family Ties Within the United States: Birth certificates, marriage certificates, family photos, copies of family member green cards, U.S. Passports or naturalization certificates, and letters from family members
  • Length of Residence in the United States: Apartment leases or mortgages, letters from neighbors, and telephone, cable, and electric bills
  • Evidence of Hardship to Family Members If Deported: Records of any medical, psychiatric, or educational disabilities of family members who depend on the defendant; or testimony or letter from the spouse (even if separated or divorced) showing that the defendant provides financial and emotional support for the children
  • Evidence of Hardship If Deported: Medical or education records indicating a disability or chronic health condition
  • Country Condition Reports: Newspaper and magazine articles or U.S. State Department Country Reports on the human rights and/or economic conditions in the country of origin
  • Service in the United States Armed Forces: Discharge papers, commendations, or VA benefits statements
  • History of Employment: Letters from employers, pay stubs, W-2 forms, or social security earnings statements
  • Ownership of Property in the United States: Mortgage and bank statements
  • Tax History: Copies of tax returns from as many years back as available
  • Proof of Rehabilitation: Certificates of attendance at drug or alcohol rehabilitation programs and letters from counselors, therapists, or sponsors
  • Community Service: Letters from youth sports programs, church groups, and civic organizations
  • Any other evidence of good moral character.

Negative Factors

  • Criminal history and the circumstances of the crimes for which convicted
  • Lack of work history and payment of taxes
  • Any other violations of immigration laws, or any other evidence of bad character.

What Happens If You or a Family Member Is Detained Before a Hearing?

If you or a family member is detained, there is no guarantee that they will be detained in the state where they live or that the case will be heard in the state where they live. Immigration officials can and frequently do transfer detainees all around the U.S. At our New Jersey immigration firm, we can file an application for a Change of Venue to try to bring the case closer to home. However, for those subject to mandatory detention, this procedure is difficult.

In some situations, the immigration lawyer can also request that you or a family member be released from detention. This is called a Bond Determination. Not everyone is eligible for bond. If the government believes you are a danger to the community, you will not be released, and your case will be heard while you are detained.

Detention cases are usually put on a fast track. As hearings happen quickly, it is important to hire a deportation lawyer as soon as possible.

Who Is Subject to Mandatory Detention?

You are subject to mandatory detention if you are a lawful permanent resident or were admitted with a visa but overstayed if either of the following is true:

  • You committed 2 crimes involving moral turpitude at any time after admission
  • You committed an aggravated felony offense, a controlled substance offense, or a firearms offense.

You are subject to mandatory detention if you are a lawful permanent resident returning from a trip abroad, a person who entered without inspection, or a person seeking admission into the U.S. with a visa if any of the following is true:

  • You committed 1 crime involving moral turpitude
  • You committed a controlled substance, drug trafficking, domestic violence, or prostitution offense
  • You committed 2 or more offenses with an aggregate sentence of 5 years in prison.

How Can I Stop My Deportation/Removal & Do I Qualify for Relief from Removal?

There are several ways a non-citizen can stop his or her removal in immigration court. The following is a summary of the most popular form of relief from removal. Remember: each case is different and requires a careful analysis of the individual’s immigration and criminal history. If you or a friend is facing a removal proceeding, please contact our office for a review at (800) 909-8129 or with our short online form. We can help!

Improper Service of the Notice to Appear: The notice to appear must be properly served. If not, then the case cannot proceed until it is properly served.

Not Removable as Charged: The government has the burden of proof to show that you are subject to removal because of a criminal conviction. A possible defense is that the crime and or conviction does not match with the removal charge or that you are actually a U.S. citizen.

Voluntary Departure (VD): VD requires an individual to leave the U.S. before the conclusion of the hearing. VD is generally preferable to a removal order. VD before the conclusion of proceedings requires a showing that you can afford to leave the U.S. at your own expense. VD requires that you have not committed or been convicted of an aggravated felony, that you waive your right to appeal and make no additional request for relief.

If this form of voluntary departure is granted, the judge may give you up to 120 days to depart and can require the posting of a bond. Voluntary departure at the conclusion of proceedings requires departure within 60 days, requires a showing of good moral character for 5 years, but does not require the waiver of the right to appeal.

Cancellation of Removal for Lawful Permanent Residents: If you are a permanent resident (i.e., a green card holder), you may apply for cancellation of removal if 1) you have continuously resided in the U.S. for seven years after any lawful admission and before service of the NTA or commission of the crime that caused the NTA, or 2) have been a green card holder for at least 5 years and have not been convicted of an aggravated felony. In addition, you must show that there have been no prior grants of cancellation or a waiver under 212 C. Relief depends upon a weighing of positive and negative factors.

Cancellation of Removal for Non-Lawful Permanent Residents: If you area non-lawful permanent resident, you can apply for cancellation of removal if you have resided in the U.S. for at least 10 years immediately before the application, have had good moral character during the 10-year period, and you can show that departure would cause an exceptional and extremely unusual hardship to a U.S. citizen or permanent resident spouse, parent, or child. In addition, you must show that you have no conviction for certain types of crimes. The clock stops for the 10 years upon service of a valid NTA or commission of certain crimes. Relief depends upon a weighing of positive and negative factors.

212 C Relief: If you are a lawful permanent resident who pled guilty to crimes before April 24, 1996, you may be eligible for discretionary relief under this former section of the Immigration and Nationality Act. If you maintained seven years of unrelinquished domicile, had a green card for at least five years, and have not served five years or more in prison for one or more aggravated felony convictions. If the above is met, the judge will weigh your positive and negative factors in the application for relief. If granted, you will keep your lawful permanent resident status.

Positive factors in favor of Cancellation of Removal or 212 C Relief include:

  • Strong family ties in the U.S.
  • Residence of long duration in the U.S., especially if begun at an early age
  • Evidence of hardship to the defendant’s family if the defendant is deported
  • Evidence of rehabilitation if the defendant has a criminal record
  • Evidence of good moral character
  • U.S. military service
  • History of employment
  • Business ties
  • Ownership of property in the U.S.
  • Tax history
  • Community service
  • Conditions in the country of origin

Negative factors weighing against Cancellation of Removal include:

  • A criminal record (particularly of recent and/or serious crimes); and
  • Other significant violations of immigration laws; and
  • Evidence of bad moral character.

Adjustment of Status (AOS): AOS is available if you were admitted to the U.S. after inspection (or are otherwise eligible for adjustment) and you have a qualifying relationship with a relative or employer. Your status can be adjusted after an application is filed and approved by the Department of Homeland Security. If approved and there is a visa immediately available, an immigration judge can adjudicate the application for adjustment of status or remand the matter back to the Department of Homeland Security.

Asylum: An applicant for asylum must be unable or unwilling to return to the home country because of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. An application for asylum must be submitted within one year of entry in most cases, and you cannot have a conviction for a serious crime.

Asylum applicants can apply for the right to work legally in the U.S. one year after the application is filed. One year after approval of the asylum application, you can an apply to become a lawful permanent resident, and then a U.S. citizen. For more information, read about Asylum & Refugee Status.

Withholding of Removal: This is a form of relief like asylum, but it requires a higher showing of probability of persecution upon return to one’s home country because of race, religion, nationality, membership in a particular social group, or political opinion. There is no deadline to apply. This form of relief does not allow one to become a permanent resident or U.S. citizen.

Convention Against Torture (CAT): This form of relief prevents removal to your home country if you can show that you would suffer pain and suffering intentionally inflicted by or with the approval of a public official if returned. Note this relief does not prevent the government from deporting you to a different country.

T or U Visa for Victims of Abuse: “T” and “U” visas are available to victims of human trafficking or serious crimes, such as domestic violence or sexual assault, who cooperate with U.S. law enforcement to investigate and prosecute the crime(s).

T visas are available if you are facing deportation and are in the U.S. as the result of human trafficking. You need to show that removal from the U.S. would result in “extreme hardship.”

If you were the victims of a serious crime in the U.S., you can apply for a “U” visa. U visa applicants must prove that they suffered “substantial physical or mental abuse” because of the crime.

“T” and “U” visas allow eligible victims to remain and work in the U.S. temporarily – usually for four years. Typically, the visa holder may apply for a green card after three years.

Violence Against Women Act (VAWA): This form of relief allows certain people, male or female, who are victims of battery or extreme cruelty from a lawful permanent resident or U.S. citizen spouse or parent to remain in the U.S. You must be able to show that you have been continuously physically present in the U.S. for a period of 3 years, have good moral character, are not inadmissible to the U.S., and would suffer extreme hardship if not allowed to remain in the U.S.

212 (h) Waiver for Certain Inadmissible Offences: If you are a lawful permanent resident (i.e., have a green card) and have at least seven years of continuous residence before service of the NTA, you may be able to apply for relief from deportation if you committed certain types of criminal offenses.

The crimes that can be waived are:

  • Crimes involving moral turpitude
  • Multiple convictions for 2 or more offenses with a total sentence of 5 years or more
  • Prostitution or prostitution related offenses
  • Single offense for simple possession of 30 grams or less of marijuana

To be eligible for relief, you must be the spouse, parent, or child of a U.S. citizen or lawful permanent resident and show that denial of admission would inflict extreme hardship on that relative. To be eligible, the crime must have occurred more that 15 years ago.

Temporary Protective Status(TPS): The President of the U.S. occasionally declares that citizens of certain countries will be allowed to live and work in the U.S. for a temporary period. You must meet all the qualifications to apply and do so within that period. You must be admissible and not have any felony convictions or two or more misdemeanor convictions to qualify. Upon approval, you will be allowed to legally work and travel with prior permission.

601 a Provisional Unlawful Presence Waiver: To qualify for a 601a waiver, you must be married to a U.S. citizen or lawful permanent resident and be able to show that deportation would result in hardship to your spouse or children; your sole violation must be unlawful presence. Upon a proper showing of prima facia eligibility, the judge and the government attorney may administratively close your case to allow you to apply for the waiver. Upon approval, you would still need to leave the U.S. and have an immigrant visa interview at a U.S. Embassy or consulate.

Deferred Action for Childhood Arrivals (DACA): DACA is a program of discretionary relief that allows immigrants who were brought to the United States as children to apply for two years of protection from deportation and a work permit. The protection is renewable.

Those eligible for deferred action must meet all the following criteria:

  • Entered the U.S. before age 16
  • Have resided continually in the U.S. since June 15, 2010
  • Were physically present in the U.S. on June 15, 2012
  • Are enrolled in school, have graduated, or earned a GED or other high school equivalency certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States
  • Have not been convicted of a serious crime or involved in serious criminal activity.

Deferred action does not provide you with a green card or path to citizenship. However, it does allow a Judge or the government attorney to defer removal action so that you can remain in the U.S.

Prosecutorial Discretion: The government attorneys always have broad “prosecutorial discretion” to “dismiss” certain deportation cases if an individual’s circumstances fit within their qualifications. There are no firm rules regarding when a government attorney can exercise their discretion, but it is more likely when your removal proceedings are not the result of a criminal conviction, and you have been a long-time resident with good moral character.