DEPORTATION & REMOVAL PROCEEDINGS AND BOND

Procedures and Defenses

The most significant changes in the Immigration Act of 1996 concern those in deportation and exclusion. In fact, the new act removes the terms deportation and exclusion and replaces them with a new term known as "removal proceedings". Formerly there had been a difference between the status of an alien who had physically entered the United States (whether legally or illegally), who would be subject to deportation proceedings, and that of an alien who was apprehended at the border, before entry to the United States, who would be subject to exclusion proceedings. However, the new act does away with these distinctions generally, and now uses the term removal proceedings to describe those whom the immigration service wishes to expel from the United States.

The immigration act still distinguishes between those aliens who are inadmissible to the United States, and those who are in the United States and subject to deportation. Section 212 of the Immigration & Nationality Act lists ten (10) general classes of aliens who are ineligible to receive visas and are ineligible for admission to the United States. Section 237 of the Act lists the general classes of aliens who are deportable from the United States. These contain six (6) main classifications, within which are contained numerous sub- classifications. Both sections 212 and 237 are described in much greater detail in the following portions of the manual.

GENERAL OVERVIEW OF GROUNDS OF INADMISSIBILITY AND DEPORTATION

For many aliens, their first meeting with the immigration service is when they are arriving at a port of entry to the United States. This can be an airport, a seaport, or a border crossing point. Whenever an alien attempts to enter the United States, he or she must convince the immigration officer that the purpose of the entry is lawful, complies with the type of visa that they are carrying, and that they are otherwise admissible to the United States. In other words, if they are not admissible, because of one of the grounds of inadmissibility in section 212 of the Immigration Act, they will not be permitted to enter the United States.

The grounds of inadmissibility are as follows:

(1) Health related grounds: This includes those who have certain communicable diseases such as tuberculosis, and sexually transmitted diseases including the HIV virus and AIDS. A waiver is available to an alien who is the spouse or the unmarried son or daughter, or the minor unmarried lawfully adopted child, of a United States citizen, or of an alien lawfully admitted for permanent residence, or of an alien who has been issued an immigrant visa, or has a son or daughter who is a United States citizen, or an alien lawfully admitted for permanent residence, provided they follow any requirements of the applicable health department, including the posting of any bond that may be required. In addition, the Immigration Reform Act of 1996 now requires all persons who are seeking permanent residence in the United States to be vaccinated for a variety of illnesses, including polio, mumps, measles, etc. If the proper vaccine were received, then the ground of inadmissibility would be removed. Furthermore, an alien who is determined to have, or sometimes, have had, a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, is inadmissible, but a waiver is available upon following the requirements of the health department and posting the applicable bond. Drug addicts and drug abusers are inadmissible, and no waivers are provided for under the act.

(2) Criminal and Related Grounds: An alien who has been convicted of a crime involving moral turpitude, or of a violation of (or a conspiracy or attempt to violate) any law or regulation of a state, the United States, or a foreign country relating to a controlled substance is inadmissible. Also, any alien convicted of two or more offenses, even if they did not involve moral turpitude, is inadmissible if the aggregate sentences to confinement actually imposed were 5 years or more. An alien whom the consular or immigration officer knows, or has reason to believe, is or has been an unlawful trafficker in any controlled substance is inadmissible. Additionally, any alien who is involved in prostitution or commercialized vice is inadmissible.

An alien inadmissible on criminal grounds may be granted a waiver under section 212(h) of the Immigration and Nationality Act if the alien is the spouse, parent, son or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence; can establish that the US citizen or lawful permanent resident relative will suffer extreme hardship if the waiver is not granted; and that the admission of the applicant would not be contrary to the national welfare, safety, or security of the United States. In addition, if the crime were committed more than 15 years before seeking admission, the alien need show only rehabilitation and that the admission of the alien would not be contrary to the national welfare, safety, or security of the United States.

The waiver application is filed on immigration form I-601, with a filing fee, and proof of the qualifying relationship. Also, you must attach whatever evidence you have that extreme hardship will be caused to the US citizen or lawful permanent resident relative if the waiver is not granted.

Under the Immigration Reform Act of 1996, no waiver may be granted under this section if the alien had earlier been admitted to the US as a permanent resident, and since said date had been convicted of an aggravated felony, or the alien had not resided lawfully in the US for at least seven (7) years.

(3) Security and Related Grounds: This ground of inadmissibility is about any alien who seeks to enter the United States to engage in espionage, to import or export any illegal security items, who seeks the overthrow of the US government, who has or seeks to engage in terrorist activities, whose actions will have serious foreign policy consequences for the United States, is a member of a totalitarian party, or took part in Nazi persecution or genocide.

(4) Public Charge: Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible. The factors to be considered in determining whether an alien is likely to become a public charge include the alien's age; health; family status; assets, resources, and financial status; and any affidavit of support given for the alien.

(5) Lack of Labor Certification: Any alien who seeks to enter the United States, on a permanent basis, for performing skilled or unskilled labor is inadmissible unless he or she has first obtained a labor certification from the Department of Labor certifying that there is a shortage of workers in the alien's occupation in the part of the country where the alien will be employed. A labor certification is unnecessary if the alien is entering pursuant to a petition filed in the family preference category, or on a nonimmigrant visa, as an investor, or as a refugee. Aside from the above, certain aliens entering as medical doctors or health care workers are admissible only if they have first passed the required medical or health care exams and have a proper certificate evidencing such compliance.

(6) Illegal Entrants and Immigration Violators: These include aliens who have entered the United States without admission or parole; those who have failed to attend a removal proceeding; those who have willfully misrepresented a material fact, or committed fraud in seeking entry to the US; or have falsely claimed US citizenship; or a nonimmigrant alien who has fraudulently obtained a public benefit; and stowaways and alien smugglers.

A waiver exists for those who are present in the US without admission or parole if they can establish that they are a battered spouse or child. In addition, a waiver exists for those who have committed fraud, or have made a material misrepresentation, if the alien is the spouse, son, or daughter of a United States citizen or lawful permanent resident alien, and that the refusal of admission to the United States will cause extreme hardship to the citizen or lawfully resident spouse or parent of such alien. The waiver application is filed on immigration form I-601, with a filing fee, and proof of the qualifying relationship. Also, you must attach whatever evidence you have that extreme hardship will be caused to the US citizen or lawful permanent resident relative if the waiver is not granted.

(7) Documentary Requirements: This class includes aliens seeking to enter as immigrants or nonimmigrants who do not have the proper entry documents, including valid passports, visas, alien cards, etc. A waiver exists in cases of unforeseen emergencies; or where the alien is a citizen of a country that has a treaty with the US for admission of its nationals without the necessary documentation; or where the alien is proceeding in direct transit through the US.

(8) Ineligible for Citizenship: Any alien seeking to enter as an immigrant who is permanently ineligible to citizenship is inadmissible. This includes those who have evaded the draft, but does not include those aliens who seek to enter the United States only as nonimmigrants.

(9) Aliens Previously Removed: This class of inadmissibility applies to those aliens who have been ordered removed from the United States. Generally, they are ineligible to reenter the United States for a period of five years following the removal order. The period is increased to twenty (20) years if it is a second removal, or it is a permanent bar if the alien were removed for the commission of an aggravated felony.

This section also contains a ground of inadmissibility for aliens who are "unlawfully present" in the United States. This section was added by the Immigration Reform Act of 1996, and is considered one of the most extreme measures in the new act. This provision provides that any alien who was unlawfully present in the United States for a period of more than 180 days but less than 1 year, (after April 1, 1997), voluntarily departed the United States, whether under a removal order or not, and who again seeks admission within 3 years of the date of the departure or removal, or has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such departure or removal is inadmissible. Unlawful presence means the alien's presence in the United States after the period of stay granted by INS, or if the alien is present in the United States, without being admitted or paroled. Besides all the above, an alien who has been unlawfully present in the United States for an aggregate period of more than 1 year, or has been ordered removed and who enters or attempts to enter the United States without being admitted is inadmissible.

Several exceptions exist. These include minors under the age of 18; those who have filed a bona-fide application for asylum; those who qualify for the family unity program; battered women and children; and those who have filed a non-frivolous and timely application for an extension of stay or change of status and have not been employed without authorization in the United States. However, this extension of time while an application is undecided shall not exceed 120 days.

A waiver is available under the three (3) and ten (10) year bars for an alien who is the spouse or son or daughter of an US citizen or permanent resident, and if it is established to the satisfaction of the immigration service that the refusal of admission to such immigrant alien would lead to extreme hardship to the citizen or lawfully resident spouse or parent of such alien. As with many other provisions of the new act, no court review of the immigration decision is permitted.

(10) Miscellaneous Provisions: There are several other classes of aliens who are inadmissible. These include practicing polygamists; guardians who are required to accompany helpless aliens; international child abductors; unlawful voters; and former citizens who renounced citizenship to avoid taxation.

Besides the grounds of inadmissibility mentioned above, an alien can also be removed from the United States based on the grounds in Section 237 of the Immigration and Nationality Act, which is entitled "General Classes of Deportable Aliens". There are six (6) general grounds listed, which include the following:

1. Aliens who were inadmissible at the time of entry or adjustment of status, or who have otherwise violated their status, such as those who have worked without authorization or have overstayed their time in the United States. Also included are aliens whose conditional residence status has been canceled, those who had engaged in alien smuggling, and aliens who have engaged in marriage fraud.

2. Aliens who have been convicted of a crime involving moral turpitude committed within five years after the date of admission, where the maximum sentence, which could be imposed for the crime, is one year or longer, is deportable. Also, an alien who at any time after admission is convicted of two or more crimes involving moral turpitude is deportable. These deportation grounds also include aliens who are convicted of controlled substance violations (other than a single offense involving possession for one's own use of 30 grams or less of marijuana), as well as drug abusers and drug addicts, and those who have been convicted of any firearms violations. The new act also makes deportable those aliens who have been convicted of a crime involving domestic violence, stalking, or child abuse. Also, any alien who is convicted of an aggravated felony at any time after admission is deportable. An aggravated felony is described in Section 101 (a) (43) of the Immigration Act. These are crimes which the Immigration Service considers particularly serious, and which will prevent nearly all forms of relief.

3. An alien is deportable for failure to register a change of address (unless the alien establishes that such failure was reasonably excusable or was not willful); for any conviction related to the use of false documents; or for falsely claiming US citizenship.

4. An alien may also be deported for a violation of security and related grounds such as terrorist activities, engaging in actions which could have potentially serious adverse foreign policy consequences for the United States, and if he or she has engaged in Nazi persecution or genocide.

5. Any alien who becomes a public charge within five (5) years of entry, from a cause that did not arise after entry, is also deportable.

6. Finally, any alien who has voted in violation of any Federal, State, or local law is deportable. Now that you know the reasons the immigration service may arrest you and deny entry to the US, or may seek your deportation from the US, it is important to know whether you can get a bond to be released from immigration custody, as well as your rights to contest the decision made by the immigration officer.

DETENTION AND BOND: When discussing the right to an immigration bond, you must understand the difference between an alien who has been admitted to the United States and one who is simply an applicant for admission. The new immigration act describes applicants for admission as those who are arriving in the US as well as those present in the US who were not admitted.

What happens to an alien who arrives at a port of entry and the immigration officer believes that he or she is inadmissible? One of the most controversial provisions of the new immigration act provides that certain aliens who attempt to enter the US by fraud or misrepresentation, or who arrive without valid documents, may be removed under an expedited process without a further hearing. The alien is no longer permitted to have a hearing before an immigration judge. This new rule, however, does not apply to those claiming to be lawful permanent residents, refugees, or asylees. In addition, those entering without proper documents, who indicate an intention to apply for asylum or express a fear of persecution, must be referred to an asylum officer to determine if the alien has a credible fear of persecution. An asylum officer, usually at an INS detention facility, will conduct these interviews.

For aliens who may be inadmissible on grounds other than false documents or misrepresentations, the immigration service will usually detain these aliens at a detention facility until they can be scheduled for a hearing before an immigration judge. There is no right to a bond for persons seeking admission to the US, and they will be paroled from custody only in a few situations, such as medical emergencies. If an alien can establish a credible fear of persecution, then they will be eligible for parole. At the present time, the immigration service intends to apply the expedited removal proceedings only to arriving aliens, and not to those inadmissible aliens found within the US.

Under the new immigration act, the immigration service must take into custody any inadmissible alien who has been convicted of a crime involving moral turpitude, who has violated any law on a controlled substance, who has been convicted of two or more offenses where the total sentences to confinement imposed is more than five years, who has been convicted of any crime related to prostitution, or who has been involved in any terrorist activity. Also, a deportable alien must be taken into custody if convicted of one crime of moral turpitude committed within five years of his or her last entry if a sentence of one year or more was imposed, or if convicted of two crimes of moral turpitude committed at any time after entry, or if convicted of an aggravated felony, or if convicted of a drug or firearms offense, or is a drug abuser or addict, or if involved in terrorist activities.

Under current regulatory enforcement practice this law allows the mandatory detention without bail of all aggravated felons released after October 9, 1998 regardless of whether they actually pose a danger to the community or whether they are a flight risk. There is no administrative or judicial review of the INS detention. However, any immigrant who completed his or her criminal sentence before October 9, 1998 can be considered for release from detention. If the INS does not release the immigrant, he or she can apply for a bond redetermination hearing before an immigration judge, and can appeal any negative decision to the Board of Immigration Appeals (BIA). The provisions of section 236(c) of the Act "shall apply to individuals released after" October 8, 1998, the date which the Transition Period Custody Rules expired. See, Matter of Adeniji, Interim Decision #3417 (BIA 1999); 8 C.F.R. Sec. 236.1(c)(8)(2000).

The mandatory detention provisions of section 236(c) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1226(c) do not apply to an alien who was convicted after the end of the Transition Period Custody Rules-October 8, 1998, but who was last released from the physical custody of state authorities before the end of the Transition Rules and who was not physically confined or restrained because of that conviction. In re Neville George WEST, Interim Decision #3438, October 26, 2000.

For other aliens who have been admitted and have not been convicted of serious crimes, an immigration bond is available. Usually the arresting immigration officer, with the concurrence of a supervisor, will set a bond at the time of the arrest, in an amount of at least $1,500.00. The amount of the bond will depend upon many factors including the seriousness of the immigration ground of deportability, the length of time the alien has been in the United States, any family ties that the alien has in the United States, the possibility of any relief from deportation, etc.

If the alien is satisfied with the bond, and has the means to post it, (either in cash or through a bail bondsman), it can be posted and the alien will be released from custody. The alien will be provided with a Notice to Appear, which is the official charging document in the case. (This will be discussed in greater detail in the next section.) In addition, the new immigration act prohibits the grant of work authorization to the alien while he or she is on bond, unless the alien is lawfully admitted for permanent residence, or otherwise would be provided such authorization.

If the alien is not satisfied with the bond amount, or if no bond is set, he or she may request a hearing before an immigration judge to set, or to redetermine the bond. While waiting for a bond hearing, the alien will be detained in INS custody. During the bond hearing, the alien may be represented by an attorney. The alien and the attorney may present evidence on the alien's behalf, and they have the right to examine the documentation that the immigration service uses at the hearing. The key determinations in deciding whether to grant bond, and in what amount, are whether the alien is a security risk and whether the alien is likely to appear at all future court and immigration hearings. In that regard, the immigration judge will look at the same factors that the immigration officer looked at when making the initial bond decision. Either the alien or the immigration service may appeal the bond decision of the immigration judge. This appeal must be filed with the Board of Immigration Appeals.