Deportation Proceedings:
Telling it to the Judge
Transcript
Jennifer Wipf: Welcome to
our deportation chat everyone. I have Carl Shusterman on the line now and we're ready to
begin. Please remember that these questions and answers are of a general nature and should
not be construed as legal advice.
Carl Shusterman: Good
evening everyone. :)
Jennifer Wipf: Hi Carl. Here's our
first question:
Question #1: Can someone get
deported for being over their visa by a month? How soon does someone get deported?
Carl Shusterman: One of the
most common reasons for INS asking the immigration courts to remove someone from the
United States is that they have stayed in the United States longer than permitted.
However, having said that, don't expect to be placed under removal proceedings simply
because you have overstayed.
From 1976 to 1982 I was employed as an attorney with the INS and I can assure you,
that the agency lacks the resources to deport even a small fraction of those persons who
have overstayed. Most persons who are in removal
proceedings get there by submitting an application to the INS which is denied.
A large proportion of people in removal proceedings have had their asylum applications
denied by the INS. Another large group in removal proceedings, are persons who have
committed deportable crimes in the United States.
During the remainder of this chat, I will be using the terms "removable"
and "deportable" interchangeably, although there are a few technical differences
between the terms.
Question #2: Can a traffic
ticket get me deported? What kind of crimes count against me and are we ever immune to
deportation?
Carl Shusterman: You cannot
be deported for a traffic ticket. Most, but not all, people who are deported for criminal
convictions have either committed felonies or "crimes of moral turpitude".
Crimes of moral turpitude would include crimes such as murder, manslaughter, rape, and
most theft crimes. However, less serious crimes like simple assault and battery or
driving under the influence of alcohol are usually not considered crimes of moral
turpitude.
To see a complete list of such crimes of moral turpitude, go to:
scroll down to "Criminal Offenses" and click on "Crimes of Moral
Turpitude."
Question #3: What happens
after you file for suspension of deportation? The INS will grant Green Card or what ???
Carl Shusterman: Suspension
of deportation is currently available only to persons who were placed in deportation
proceedings prior to April 1st, 1997, and to persons who are NACARA eligible. To qualify
for suspension of deportation, you must demonstrate
1) that you have been continuously physically present in the United States for at least 7
years
2) that you are a person of good moral character, and
3) that your removal from the United States would result in "extreme hardship"
to yourself and to any parents, spouse or children who are US citizens or lawful permanent
residents.
Between 1993 and 1997, we surrendered over 80 of our clients to the INS to be processed
for deportation proceedings in order to apply for suspension of deportation. All 80 were
granted green cards by immigration judges.
However, Congress changed the law in 1996 so that most persons in removal
proceedings are ineligible to apply for suspension of deportation. :(
Essentially, Congress replaced Suspension of Deportation with a new form of relief,
called "Cancellation of Removal" Cancellation of removal requires that
1) you be continuously physically present in the United States for 10 years before INS
initiates removal proceedings,
2) that you are a person of good moral character, and
3) raises the level of hardship which is required, and does not consider hardship to you,
only to your qualifying relatives.
We have been much more selective about surrendering clients to INS in order to apply for
cancellation or removal. However, we have won each of the first few cases that we have
taken before the immigration court.
Jennifer Wipf: Some
difficult options to weigh for many people. Here's our next question:
Question #4: With the 1996
radical changes in immigration regulations, is best to do: to turn oneself in to INS once
your visa expires or to wait for the INS to catch you?
Carl Shusterman: Before you
even consider turning yourself in to the INS be sure to seek the opinion of a competent
immigration attorney and get a second opinion as well.
For every person that our firm surrenders to INS, I turn away at least 10 other
persons. The rule is never surrender unless you are sure that you will qualify for a
benefit under the immigration laws.
Question #5: I am sure
I'm about to be deported. What is the amount of time before I can apply for a visitor visa
or a working visa to the USA?
Carl Shusterman: The term
"deportation" has a precise meaning under the immigration law.Generally, a
person in removal proceedings is eligible for voluntary departure. A person who
voluntarily departs the United States may apply for a visa abroad at any time.
However, obtaining a tourist or student visa will be very difficult since an immigration
judge has made a finding that you have violated the immigration laws.
On the other hand, some persons are not eligible for voluntary departure, possibly
because they have been convicted of a serious crime, or cannot demonstrate that they have
good moral character. If an immigration judge orders you deported or removed from the
United States, you cannot return to this country for a minimum of 10 years without special
permission from the Attorney General.
Question #6: What is the
deal with "arrested but not convicted" -- Can I be deported for an arrest if I
have not been convicted?
Carl Shusterman: No.
Question #7: I heard
that if my case was plea bargained, they still use the original charge to decide if they
deport me. Is it true?
Carl Shusterman: No, not
true.
Jennifer Wipf: That
should put a lot of minds at ease, but here's a question that scares a lot of people:
Question #8: How do they
come get you if they want to deport you?
Carl Shusterman: Most people
receive a Notice To Appear for removal proceedings, either at the asylum office or in the
mail.
Persons serving time in prison who the INS believes are removable are turned over by
federal or state authorities directly to the INS. Only a small minority of individuals are
arrested by the INS and placed under removal proceedings.
Question #9: Can a person
that is being detained now & due to be voluntarily deported on Wed change their mind
& fill out a stay of deportation due to their fiancé being pregnant and now plans to
marry each other?
Carl Shusterman: Anyone can
apply for a stay of deportation, but applying for a stay based on a marriage which has not
yet occurred is definitely a long shot.
Question #10: What is the
current or up to date status on Amnesty 2000 for undocumented and/or illegal aliens? Who
is included and who might be deported?
Carl Shusterman: Amnesty
2000 at this point, is merely a proposal by the AFL/CIO, the giant labor union/federation.
See:
At present no senator or representative has introduced an amnesty bill in Congress.
Until they do so, and it passes and is signed by the president, it is impossible to say
who the amnesty will cover.
Suffice to say that when I left the INS in 1982, my very first client was a grandmother
who was under a final order of deportation. When the amnesty passed in 1986, the fact that
a judge had ordered her deported was not a barrier to obtaining a green card on her
behalf.
Question #11: I just
received a receipt for an I-212 that I submitted for my wife who was deported 3 months
ago. It says 180 days, what can I do in the meantime to help get a quick and positive
response???? I don't want to hurt our case.
Carl Shusterman: The INS
seldom processes an I-212 with any sense of urgency. Since a denied I-212 means that your
wife will have to remain abroad for 10 years or more, your primary objective should be to
ensure that the I-212 is properly documented and refers to such precedent cases as
"Matter of Tin" and "Matter of Carbajal". It is far more important to
spend the time to properly document the I-212 and make sure that you can bring your wife
back in 6-12 months, rather than to be overly concerned about whether it takes the INS 5,
6 or 7 months to decide the application.
Ultimately, if too long a time goes by, and INS does not answer your inquiries, it is
possible to go to federal court and ask for a "Writ of Mandamus" to compel the
INS to decide the application.
Jennifer Wipf: It's
time for Carl to leave now, all. You can feel free to stay on and chat openly if you'd
like. Carl, everyone here is grateful for the chat and looking forward to the transcript,
which I will post in the near future.
Carl Shusterman: Good
evening all! I look forward to seeing you again soon.
| 