The Basics of Removal Law (aka Deportation)

Posted on March 6, 2009 by Austin Kennedy

In 1996 Congress adopted the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act (commonly referred to as IIRIRA). The 1996 laws changed the rules by which noncitizens could be physically removed (ie., deported) from the United States. Most notably, the laws expanded the category of crimes known as aggravated felonies by adding many types of crimes and lowering the threshold for other crimes to qualify as aggravated felonies. This monumentally changed immigration law because aggravated felonies are the category of crimes that, when alleged against a noncitizen, make that noncitizen eligible for removal (ie., deportation).

In addition to murder and drug or firearms trafficking, aggravated felonies now include all crimes of violence or theft when the term of imprisonment is one year or more. More broadly, a noncitizen alleged to have committed a crime involving “moral turpitude” is likely to be put in removal or deportation proceedings. In general terms, a crime involving moral turpitude is a crime that is inherently base, vile, depraved and contrary to the excepted rules of morality. Determining whether an alleged crime should be viewed as a crime involving moral turpitude (and thus making the accused eligible for removal) requires a thorough analysis of the state’s code under which the crime is defined. Having said that, the following crimes have regularly been categorized as crimes involving moral turpitude: murder, rape, robbery, aggravated assault, fraud, theft, spousal or child abuse, incest, voluntary manslaughter and statutory rape. If removed, aggravated felons are permanently barred from reentering the United States unless the Attorney General provides permission for them to renter.

Legal changes in the 1990s also decreased other defenses against removal, even for aliens who are not aggravated felons. Currently, aliens who have committed certain crimes may be granted a waiver under limited circumstances, the primary one of which is preventing “extreme” hardship to the alien’s U.S. citizen or permanent resident child, spouse, or parent. In practice, the standard for proving “extreme” hardship is very difficult to prove. There is no bright line for what constitutes such a hardship, but typically it means that the noncitizen, if removed, will be abandoning multiple dependents without support or with limited support in the United States. Once removed, aliens who are not aggravated felons are barred from reentering the United States for five (5) to twenty (20) years.

And finally, we come to the charging document that begins the removal and deportation processes—the Notice to Appear (ie., NTA). At a minimum, the NTA does the following:

• states the factual allegations for which the person is charged with removability;
• indicates the section of the law allegedly violated;
• gives the date and time of the hearing;
• advises the accused individual of certain rights, including the right to counsel at no expense to the government; and
• notifies the alien of his or her obligation regarding change of address and the consequences for failing to appear for a hearing.

Suffice it to say, removal and deportation law is exponentially more complicated and nuanced than what I’ve described above. With that said, if you or a loved one has received a Notice to Appear, you really ought to contact a qualified immigration attorney to analyze your situation and apprise you of your rights.
 

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Immigration Courts Completely Swamped

Posted on February 10, 2009 by Austin Kennedy

National Public Radio does an exemplary job of covering the way our country's immigration laws and enforcement priorities affect immigrants and non-immigrants alike.  During yesterday's "All Things Considered" segment NPR produced another revealing and insightful piece examining the degree to which the Bush Administration's immigration enforcement crackdown has completely overwhelmed our immigration courts. Give the full story a listen here. 

As the piece points out, over the past new years, the Bush administration's immigration crackdown funded thousands more agents to arrest allegedly illegal immigrants and hundreds more government lawyers to prosecute them.  What the Bush administration failed to do, however, is hire the judges necessary to adjudicate (ie., evaluate and rule on) the millions of cases that resulted from the stepped-up enforcement actions. 

The sheer numbers involved are staggering:  last year 214 immigration judges were asked to adjudicate 350,000 immigration cases.  That works out to an average of 1,635 cases for each judge.  If the immigration courts operate approximately 255 days per year (factoring in federal holidays), then that means the average immigration judge had to adjudicate over 6 cases per day. 

And these cases are no trifling matters.  Rather, these judges are almost exclusively dealing with removal (ie., deportation) and asylum claims.  As one person during the program put it, "these are the equivalent of death penalty cases, and we're conducting them in a traffic court setting."  In other words, despite the judges' heroic best efforts, one could be forgiven for thinking that such a voluminous and overwhelming caseload might not lead to the careful, deliberate and exacting administration of justice.  

And, I would argue, one could be forgiven for concluding that the former administration was alright with the idea of judges being rushed, razzed and organizationally at the end of their respective ropes when asked to consider the merits of cases brought by alleged illegal immigrants.  This systemic insult to our cherished concept of due process awaits new DHS Director Janet Napolitano.  And obviously, during a time when our tax coffers aren't exactly spilling over, it's going to be an enormous challenge for the Obama administration to provide our immigration courts with the resources they need to adequately consider and evaluate these cases.  But, for a nation founded by immigrants and built on the backs of immigrants, the least we can do is provide immigrants with a meaningful day in court in front of a judge who isn't at their wits' end.   Isn't it?

 

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