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