Konare Law News

01
Aug2018

Order of Deportation, Exclusion Order and Order of Removal Explained

How Can I Tell If I was Placed into Any Of These Proceedings?

You were officially placed into proceedings if a charging document has been filed with the Immigration Court.  Another name for a charging document is a Notice to Appear, which are discussing below.

How can you tell if you have been placed in any of the above proceedings? If your charging document was filed in an immigration court, then you are officially in the proceedings. Peruse the document that you were given by the Border Patrol, ICE agent or the Immigration Officer and check at the top or the bottom of the paper. This is what the form numbers will mean;

I-221: This is a show cause order for deportation

I-122: This is an exclusion order.  It notices the applicant for a hearing for the admission of the detained.

I-862: This is a notice to appear.

Below we have reproduced images of these forms. On a rare occasion, it is possible that ICE prepared a charging document, but for whatever reason, this charging document was never filed with the Immigration Court. In this instance, the official was never “put into proceedings.”

Why Is It Important to Know If I Was Placed Into Proceedings?

There are two reasons that we like to know if you were placed into removal proceedings. First, if a charging document was ever filed with the Immigration Court (whether or not you appeared in Immigration Court), the “jurisdiction” moves from USCIS to the Immigration Court. All else being equal, if one client was in removal and another client was not in removal, and both filed their marriage-based green card cases with USCIS, the one who was not in removal would have their case approved (assuming they are eligible) and the one who was in removal would have their case denied for “lack of jurisdiction” (unless they were an arriving alien). So the first reason it is important is to know who has jurisdiction to decide your case.

The second reason it is important to know if you were in removal is to find out if you have a removal order. If you are eligible to obtain a marriage-based green card but have an old removal order, you must reopen your case before the Immigration Court to either dismiss the removal order or have your green card case hear by an Immigration Judge (usually if you have criminal conviction(s)). We have successfully reopened and terminated deportation orders from the 1970s.

How Does All of This Affect A Person?

All three (3) types of proceedings will land you before an Immigration Judge.

Deportation proceedings only apply to people who are physically present inside the U.S. and have committed an act that make them deportable from this country (e.g., criminal offense, terrorist activity, inadmissible at time of entry/adjustment, false claim to U.S. citizenship, previously deported, etc.).

If a person is determined to be deportable from the United States, the person may be deported from this country and forced to return to the last foreign departure point, deported to the home country (sometimes at government expense), or may be ordered deported and held in detention indefinitely in cases where the person’s home country will not accept the deported person (e.g., Cuba, Vietnam, etc.). The person will be given form I-221, Order to Show Cause.

pastedGraphic.png

Exclusion proceedings only apply to people arriving at a Port of Entry, Airport/Sea Landing Zone, or other Entry/Departure Route to or from the United States. Exclusion is the formal proceeding in which a person’s admissibility to the United States is determined. If a person is determined to be inadmissible to the United States, the person may be excluded from entry and forced to return to his or last foreign departure point or deported to his home country (at government expense).

When a person arrives at a port of entry to the United States, he is subject to inspection. CBP officers question all applicants for admission (U.S. citizens, lawful permanent resident, nonimmigrant visitor, or other status), look at their paperwork, and then decide whether the person should be allowed to enter the United States. If an issue during inspection due to a criminal conviction, abandonment of status due to excessive absences from the U.S., terrorist activity, medical contamination, physical/mental defect, etc.), the person will be given Form I-122, Notice to Applicant for Admission Detained for Hearing before Immigration Judge.

pastedGraphic_1.png

Removal proceedings take place for people who are physically present inside the United States and have been found to have committed an act that may render them deportable from this country. Deportation and Exclusion proceedings were combined into one unified proceeding known as “Removal”. If a person is found to be deportable from the United States, the person may be “removed” from the United States and forced to return to the last foreign departure point, “removed” to his home country (sometimes at government expense), or may be ordered “removed” and held in detention indefinitely in cases where the person’s home country will not accept a “removed” person (e.g., Cuba, Vietnam, etc.).

When a person is found to be physically present within the borders of the United States and is determined by an Immigration officer, inspector, or Border Patrol agent to have committed an act (e.g., criminal offense, terrorist activity, inadmissible at time of entry/adjustment, false claim to U.S. citizenship, previously deported, etc.) that is inconsistent with his claimed immigration status, then the person will receive a Form I-862, Notice to Appear.

Many times when a client receives a Notice to Appear, there is no date and time to appear before an immigration judge. This is because a hearing date will be mailed to the address provided. It is not unusual for a person to move before getting the hearing notice. If this happens and the person does not change his or her address with the Immigration Court and Homeland Security, the person will not receive the hearing notice. If the person does not appear at the hearing, the person will be “ordered removed in absentia.”

pastedGraphic_2.png

The Form I-863 is a Notice of Referral to Immigration Judge that is used in credible fear, reasonable fear, claimed status review, asylum-only and withholding only proceedings.

pastedGraphic_3.png

How Can You Help Me Get My Order Reopened?

Generally, a motion to reopen must be filed no later than 90 days from the date of the order. Apart from this, the best approach it to obtain the government’s consent to reopen the case. A motion to reconsider must be filed within 30 days after the mailing of the Board’s decision.

The only exception is a motion to rescind an in absentia order which does not have a deadline if you are claiming that you never received notice. Proof of failure to receive the notice can be difficult. A motion to reopen an in absentia order for any other reason, such as to adjust status, is bound by the 90-day deadline.

We are highly skilled in preparing motions to persuade the government to reopen the case months, years, or decades after an order has been issued. These filings that often exceed 100 pages contain memorandum of facts and procedural history, legal arguments, new facts, and documents that support a reopening of the case. 

How We Can Help:

  • Whether you have an Order from in absentia (did not appear at hearing) or from Voluntary Departure (but never departing the U.S.), we can help because we were successful in reopening countless of removal orders before various Immigration Courts in the country.
  • We also reopened numerous Orders of Removal from 2002. 

With the Konare Immigration Lawyers, you have the expertise that you will need to navigate the application process and handle all your questions.  Call or email us for any further questions on this subject.

Leave your comment

Please enter your name.
Please enter comment.