Law Talk 20: Deportation Procedures

In this episode of Law Talk, Ben and Andrew discuss the various steps of the deportation process, from arrest procedures to actual deportation.


Andrew Michael: Alright! It’s Wednesday. It’s 11:00. I’m here with Ben, and today we’re going to chat about deportation, just sort of in general. The itinerary is basically just sort of walking through the deportation process step by step, starting with being arrested, either by ICE or local … Really anywhere. And then just sort of the process from that point onwards until either you are allowed to remain in the country or just deported. So is there any intro information that you think is super relevant before we start getting into the actual process itself?

Ben Williams: I don’t know … I mean, there’s-

Andrew Michael: Let me put it … Is there any way to avoid getting arrested to be deported in the first place. I think we have some articles where it’s like, for example, don’t open the door if ICE comes and they don’t have a warrant, stuff like that.

Ben Williams: So it’s harder these days to avoid ICE than it used to be. Obviously people’ve been reading the news; they know ICE is kind of everywhere now. But yeah, originally, or in the past, it’s just been if you stayed out of criminals trouble, you generally wouldn’t run into ICE. But now you hear more and more they’re doing the workplace raids, they’ll just randomly show up at people’s houses, or they’ll sit in courts. They’ve picked up people on the way to the hospital, on the way out of the hospital, so …

Andrew Michael: ‘Cause it’s basically like if they have a reasonable suspicion that you’re not in the country legally. So if your neighbor reports you, they can just go to your house and be like, “Hey, what’s up?” Kind of stuff.

Ben Williams: Yeah, yeah. And they can … And again, they’re similar to any law enforcement agency–they need a warrant to come into your house or to search your stuff, so you don’t always have to talk to them, but yeah, that’s generally when deportation or removal proceedings start is if you’re here unlawfully and you have a run-in with ICE. That’s how it all starts, I guess.

Andrew Michael: Yeah. I know that’s especially important if they come looking for one person, so, for example, if you’re the person’s roommate and you’re also an illegal immigrant or not in the country legally, you don’t really have to answer their questions, you don’t have to let them search you, because they’re looking for the other person. Stuff like that, where you just need to be careful with talking to them about stuff like that.

Ben Williams: Yeah, I mean, you can try to avoid them. Generally if you’re here illegally that’s a good idea, but yeah, these days it’s just getting harder and harder to not run into ICE somewhere, so it’s good to know, I guess, what might happen if you do happen to run into ICE and are facing deportation, so that’s what we’ll go over today.

Andrew Michael: Yeah, alright. Let’s just start at the beginning of the process then: getting arrested. So there’s really three agencies in general that can arrest you and start this process. So you get picked up by the local police, like if you get a traffic ticket or something, and you’re obviously not in the country legally, they can detain you, they can hold you, they can report you to ICE. There’s a whole bunch of stuff that happens there. The second one is just Border Control in general. Considering we’re in Virginia, we don’t exactly have a super border, but I know it happens a lot in airports as well, especially for people who overstay their visas. So that’s something they definitely need to look out for. And then ICE, as we mentioned, is the last agency that it generally falls to.

Andrew Michael: So do you maybe want to speak to getting picked up by the local police a little bit, and sort of how that can transition into removal proceedings?

Ben Williams: Sure, yeah. So basically if you’re here unlawfully and you get arrested or picked up by the police, they will, as they do with everyone, run your fingerprints through their database. If it comes back, no Social Security number, you get flagged as possibly being an illegal immigrant, they’ll send the information on to ICE, the federal agency which is basically just the police force for immigration within the US borders, and if ICE decides that either based on your criminal history or just because you are likely here unlawfully that they want to detain you and start removal proceedings, they’ll send a notice to the local police to hold you. It’s supposed to be for no more than 48 hours after either you’ve served your sentence or paid your bond or whatever, and ICE’ll come pick you up and you’ll be put into an immigration detention center. Here it’s usually in Farmville is where people get transferred, Farmville, Virginia, and then they’ll start the removal proceedings. Yeah. So then you’ll be in court. Your first hearing you get a chance to ask for bond. Depending on your criminal history and your past in the US, you could be granted bond, and then you can proceed with the non-detained immigration docket, and if you don’t get bond, then you stay detained and the process moves a lot quicker, but you’ll still have a chance in front of a judge to apply for some sort of relief.

Andrew Michael: Okay. And that’s sort of stuff we’ll get into a little bit later as well. But again, so basically what you’re saying, in regards to getting arrested, is the local police can arrest you under their jurisdiction, and then they’ll report you to ICE which’ll put you in sort of another … The ICE stuff and the police stuff isn’t at the same time, kind of.

Ben Williams: Yeah, so ICE usually waits until you serve your sentence or are found guilty before they’ll actually come pick you up. So they’ll let local police do their thing and go through the courts there, and then you’ll just be on ICE’s radar, so if they decide they want to come get you, they’ll come get you after your criminal [inaudible 00:06:14] stuff is done.

Andrew Michael: That makes sense. And then, covering the last thing, just sort of getting picked up at an airport or at a border for the Border Patrol kind of thing, I know that’s super relevant for people who’ve overstayed their visas and that kind of stuff. What’s that process look like?

Ben Williams: I mean, it’s similar. It’s just, as soon as you’re found to be here illegally or suspected to be here illegally, then at the airports or at the borders it’s the Custom and Border Patrol. It’s just a different wing of immigration enforcement, and they can just have the reason to believe you’re unlawful, so they can just detain you, issue the … It’s called the Notice to Appear. It’s just the document that places you into removal proceedings, and then you’re in the same boat as someone who was just picked up by ICE. You’re just detained and waiting for your court date, basically.

Andrew Michael: Okay. So you mentioned Notice to Appear. We’ll probably get into that in probably a couple minutes, but I wanted to talk really quickly about expedited removal versus catch and release programs, ’cause I know those have been talked about a lot, especially in the news over the last year or two. So you maybe want to sort of explain what those two different processes are and how they sort of happen after first getting picked up by ICE or some other agency?

Ben Williams: Yeah, and so that ties into what we talked about last week, kind of just trying to speed things up, but it’s basically the expedited removal is if you’re caught just recently entering the US or within, I think it’s within 100 miles of the US border, they can issue an expedited removal order, and I believe you have to sign off on the expedited removal to avoid being placed in the removal proceedings, but they’ll just immediately deport you. Basically, you’re waiving your right to go in front of a judge or to fight your case. So it only applies to people that recently entered or are still close to the border [crosstalk 00:08:14] unlawfully.

Andrew Michael: I think it’s like 15 days in the country or 100 miles from the border is … So it’s people who just got here, basically.

Ben Williams: Yeah, and I just had a client last week that turned out he was here on an expired visitor visa and caught near the border and signed an expedited removal order, and that comes with a five-year bar from re-entering the US. There are waivers available if you meet the qualifications, but generally it’s sort of a deportation, but because you made it easy on them, there’s slightly less punishment than if you went through the whole court proceedings and got deported that way.

Andrew Michael: Yeah. And so what is catch and release? ‘Cause I know I’ve heard the term quite a lot recently, and it relates a lot to what we’ve been talking about, or what we talked about last week as well. So do you maybe just want to explain that really quick, and then …

Ben Williams: So that’s what we’re talking about where if you just get caught trying to enter … Is that [crosstalk 00:09:12].

Andrew Michael: Oh okay, yeah yeah.

Ben Williams: Okay. I don’t … I think catch and release is a couple different things. But basically it’s just you get caught trying to enter the US and then they’ll just basically deny you and send you back. They used to kind of not keep track of that so much, but now I believe anyone they catch they’re taking fingerprints and documenting them in case they try to re-enter in the future.

Andrew Michael: Okay. So let’s get into the actual normal immigration court deportation process. So you mentioned earlier Notice to Appear. So what does that look like? Is it something you get in the mail? Does someone have to serve with it? How does that go?

Ben Williams: Yeah, so that’s … There’s a lot of ways they can serve you. It’s supposed to be, if you get picked up at the border or arrested by ICE, they’ll usually serve you in person. It’s just a document that says what you’re charged with, basically either entering unlawfully or being here illegally, and it’ll cite the [inaudible 00:10:14] code that you violated, state the date and place of your entry, and then just state that you’re going to be in immigration removal proceedings. There’s a whole new case law that raises questions about the NTAs that were previously being issued, because they didn’t mention the date or place that your hearing would be held, but that’s a separate issue, because that’s still being worked out. But basically, it’s your just notice to appear, just like what it sounds like …

Andrew Michael: Notice you have to show up in court, basically.

Ben Williams: Yeah.

Andrew Michael: Notice that you are currently in … Are you in removal proceedings at that point?

Ben Williams: Yeah, at that point, once you’re served with the NTA, that’s when you’re officially placed in removal proceedings.

Andrew Michael: So do you get that while you’re detained by ICE, for example?

Ben Williams: Yeah, usually.

Andrew Michael: You’re in a detention center, they’ll just hand you the document and be like, “Hey, show up to court.”

Ben Williams: Yup. Yeah, you’ll have a brief interview, just, “Are you here legally? When did you enter? Where did you enter? How did you enter?” All that stuff, and then if they determine that-

Andrew Michael: Oh, come on.

Ben Williams: Was that the camera?

Andrew Michael: Yeah, I think your camera decided to die. You can just keeping going.

Ben Williams: Okay. So I guess I’m off-camera now, but yeah, that’s when proceedings start.

Andrew Michael: Yeah.

Ben Williams: Okay.

Andrew Michael: Alright, so you maybe want to talk a little bit about detainment in general? I know you mentioned, is it Farmville, is where in our area [crosstalk 00:11:40].

Ben Williams: Yeah, that’s the big immigration detention center.

Andrew Michael: So how long are people in detention? ‘Cause they can go in detention and then be released until your court date, right? Or are you just there until you have to show up in court?

Ben Williams: Yeah, so that depends. You have a right to go in front of a judge, and they try to do that quickly, which is within a couple weeks. Generally within a month for sure you’ll have your first hearing in front of a judge, and if you ask for bond or if you hire an attorney to ask for bond, you can, depending on why you’re detained; if it was a serious criminal history, you probably won’t get granted bond. But if you get bond, you have a certain amount of time to pay it, and then you’ll be released from immigration detention center and your case will be moved to the non-detained docket, which is just the general docket for people …

Andrew Michael: Okay, and is that where asylum cases and that kind of stuff would go as well?

Ben Williams: Yeah, so then you’ll have a chance to prepare your asylum or whatever, you just don’t have to stay detained while it happens. And then if you didn’t get bond, you would stay detained, and that docket moves a lot quicker, so your whole case would be decided within maybe three months.

Andrew Michael: Couple months.

Ben Williams: Yeah, so it’s a lot harder to win because you don’t have a lot of time to prepare, and you’re detained, so you can’t go looking for evidence, so the approval rates are much much lower if you’re detained.

Andrew Michael: Okay. Just sort of in this same time period, something that I hadn’t learned about until this morning, actually, is voluntary departure. Do you maybe want to speak to that a little bit, ’cause I had never even heard about it until I was Googling around this morning?

Ben Williams: Okay, yeah, so that’s an option. Sometimes it’s a good option. It depends on your case, but if you don’t have a very strong case or you don’t think you’re going to win or you don’t want to stay detained, you can ask for voluntary departure, which basically is just you saying, “I’m acknowledging that you’re here illegally,” and just saying you’ll return to your country so you get a certain amount of time to … You have to buy your own plane ticket or bus ticket or whatever, but you get a certain amount of time to report to ICE, show proof that you’re going to leave, and then you have to be out of the US by a certain date. The advantage of that is you don’t get the future penalties that you would get for a deportation where you’re barred from re-entering the US for 10 years. If you qualify for something else, you have a chance to come back to the US in the future.

Andrew Michael: That seems to be, from what I was reading, the main advantages. You can leave legally and then apply to come back in under the normal avenues and stuff.

Ben Williams: Yeah, you still might have a chance to get a visitor visa in the future, get a work visa, thing like that, where-

Andrew Michael: Have a family sponsor you, stuff like that.

Ben Williams: Yeah, whereas if you’d been deported, it gets a lot harder to ever come back, really.

Andrew Michael: Okay. So you mentioned immigration bond hearings, which is basically normal bond but for immigration court.

Ben Williams: Yeah.

Andrew Michael: So what’s a master calendar hearing? ‘Cause I know we mentioned it in brief last week, but it just sort of seems like … What happens at it? I actually don’t really …

Ben Williams: So that’s just the general sort of scheduling hearing, so typically it’s, for the non-detained people, they’ll just have these group hearings. There’ll be 40 to 50 people have their case at the same time, start at 9:00 and just goes one after the other. Basically you just plead to this notice to appear, like you admit the allegations against you if what they’re saying is true, and you tell the judge what sort of relief you’re going to apply for, whether you’re going to apply for asylum or whether you’re going to have a family member to sponsor you, and then based on that you’ll get what’s called an individual hearing or a merits hearing scheduled in the future where the judge will actually decide your case.

Andrew Michael: Yeah. And you definitely want a lawyer by that point, basically, ’cause that’s your first time you’re actually in court, in front of a judge, making decisions that affect your case fully.

Ben Williams: Yeah, so generally the judge will tell you, if it’s your first master hearing he’ll tell you to come back in a few months with a lawyer, ’cause they know that immigration law can be complicated, so it’s hard to do a case all by yourself, so generally advised once you’re in court proceedings to get a lawyer if you think you might have a case.

Andrew Michael: So what comes after the master calendar hearing? You mentioned it’s your official, this is where you’ll decide stuff hearing. Is that like the merits hearing? Is that-

Ben Williams: Yeah, so it’s called merits hearing, individual hearing, basically just if you applied for asylum or certain other kinds of relief, it’s where you’ll have your one-on-one trial in front of the judge, where you’ll present your evidence and testify, call your witnesses and do all that. And it’s just your hearing. Just you will be in front of the judge.

Andrew Michael: I’ve heard it’s similar to a civil court hearing almost in the way it progresses, sort of.

Ben Williams: Yeah, ’cause it’s not a criminal court or anything, the rules of evidence are slightly more relaxed. But it’s the same format. You testify, you get cross-examined, you get to call witnesses and do all that to present your case.

Andrew Michael: Alright, so after that, it seems like there’s two obviously routes after that: either you’re approved or you’re put into actual removal, like you’re going to be deported.

Ben Williams: Yeah [crosstalk 00:17:05].

Andrew Michael: So what are each of the … Is there anything else besides those two routes? I know you can appeal, which we can talk about in second, but what do those sort of two things look like? If you can prove you’re in the country legally after this hearing, are you just done, like you don’t have to come back to court or anything? You’re in the country, they won’t pick you up again? What does that look like?

Ben Williams: Yeah. So that, I guess, depends on what you were applying for, so, for example, if it’s asylum and you win, then yes, then the ultimate outcome is your asylum’s granted, your case is done with the immigration courts, and you can go ahead and apply for permanent residency once you’re eligible. If it’s a family sponsoring you, you just have to prove that you’re eligible for the green card once the petition’s approved, and then they’ll terminate your case and let you apply for residency. So yeah, anything you would win in front of the immigration judge would be more permanent relief where you would eventually be able to remain in the US. So yeah, so winning would be the end of your removal proceedings, and losing would end in your removal basically.

Andrew Michael: Yeah. Do you want to maybe speak a little bit about the order of removal? What’s the timeline for that after it? What sort of happens?

Ben Williams: Yeah, so that depends on kind of the case-by-case thing, just generally if you are denied at the final merits hearing, you do have a chance to appeal, like you said, so that process can take several months, so generally you’re just sort of waiting, like you might have to check in with ICE more often, you might get an ankle bracelet put on you so they can track you to make sure you’re not just going to run away. But you have a chance to appeal. If you decide not to appeal, you have 30 days usually, so once that passes, if you don’t appeal, then they’ll come pick you up again, and you might be detained, but they’ll just basically wait until there’s a spot on a bus or plane and just deport you.

Andrew Michael: Okay. So it happens immediately after you’re told to leave, basically.

Ben Williams: Yeah, they try to do it pretty quickly. At the very least they’ll pick you up quickly, and you might spend a couple months in a detention center waiting to be deported, but ultimately that’s where you’ll end up.

Andrew Michael: Okay, okay. So we mentioned appeals a couple times. I think we’ve gotten to a point where we can sort of discuss how the appeals process happens, ’cause I know not only can the person being deported appeal, but ICE can also sometimes appeal, if they don’t agree with the judge’s decision to let you stay.

Ben Williams: Yeah, that’s true, so the appeal goes to to the Board of Immigration Appeals. Like I said, you have 30 days from the date of the decision, either side, to appeal, whether you won or lost, and basically that’s not an actual court hearing; it’s all done through written pleadings and evidence, and so you fill out some forms and file your appeal with the BIA, and that can take-

Andrew Michael: Months.

Ben Williams: Between six months and a year, depending on how busy they are at that particular moment. They’re busy these days, but-

Andrew Michael: What happens if you’ve been deported for that? Do you just sort of stay in jail for those six months, or … ?

Ben Williams: You mean if you lost your case?

Andrew Michael: Yeah, like if you lost your case, you’re appealing, and you were detained before that point.

Ben Williams: Yeah, so if you’re already detained and you lose and you decide to appeal, you have to stay detained and just kind of wait. So again, we just had a case earlier where the detained person lost and the judge told them, “You can appeal, but you’re going to stay in jail for the next year while the appeal goes through, so you might want to just take voluntary departure,” and kind of convince the client to waive his appeal. So yeah, it’s a tough decision, but if you’re detained during the hearing, you have to stay detained during the appeal as well.

Andrew Michael: How late can you do voluntary departure?

Ben Williams: So the judge has a lot of discretion. You’re supposed to do it-

Andrew Michael: Early.

Ben Williams: Yeah, before your actual individual hearing, ’cause generally they don’t want to waste all the time to have this trial and block off their whole day schedule if you’re just going to say, “Oh, I’m going to lose. I just want to leave now.” But they’ll give you the option sometimes, if the judge feels bad or just thinks it’ll be easier, where you waive your appeal and just take the voluntary departure.

Andrew Michael: Okay. I think that’s pretty much the entire process. Am I forgetting anything, or did we skip any steps that you spent a lot of time on?

Ben Williams: No, I mean, I think that’s generally it. Just there’s the difference between if you were illegal, or were here illegally when you were put into proceedings or those cases where you actually had permanent residency or sometimes even were a citizen, and then placed into proceedings, so there’s … It’s a little different route.

Andrew Michael: How does that work? Can you deport a US citizen? Like if you gained citizenship?

Ben Williams: So really the only way you can is if you gained your citizenship through fraud, if they determine that. And they have a certain amount of time to figure that out. But yeah, generally once you’re a citizen, you’re safe from any of these immigration issues. But with a green card, you’re definitely still at risk. There’s a lot of things that can make you deportable. We just tweeted about permanent residents that were trying to vote, whether they thought they could or mistakenly thought they could, but yeah, that’s basically-

Andrew Michael: Oh, that was another one that I saw, was a woman that was a US citizen had her permanent resident husband, signed him up to vote, and now she’s sort of in removal proceedings.

Ben Williams: Yeah, yeah.

Andrew Michael: She was aiding with election fraud, or something like that.

Ben Williams: Yeah, I think she was just being charged with-

Andrew Michael: Yeah.

Ben Williams: So she’d probably still keep her citizenship, but she was facing six years in jail and several hundred thousand dollars in fine, which seemed a little extreme.

Andrew Michael: Yeah, especially going into the November elections. Can permanent residents vote? No.

Ben Williams: No.

Andrew Michael: No. Do not try. It it a very very bad idea.

Ben Williams: So their defense was that they thought if they were allowed to register, they were allowed to vote, so they just tried it, and no one stopped them, but the problem is that the law’s written in such a way that just voting is a violation whether you knew you were illegal or not, so it’s hard to believe they’re going to spend years in jail and spend several hundred thousand dollars, so I don’t think that’ll be the issue, but I think it was more that they are now possibly deportable from the US, just for trying to vote.

Andrew Michael: Okay. What are some other things that might get a permanent resident deported? I know probably serious crimes and stuff like that.

Ben Williams: Yeah, so it’s surprising how many things can do it. Everything from murder to fleeing immigration to smuggling people into the US all the way down to trying to vote or failing to change your address with immigration, certain crimes like petty larceny.

Andrew Michael: Just the good moral character standing still sort of works during that, right?

Ben Williams: Yeah, and there’s these things called crimes of moral turpitude, which isn’t very well-defined. Some very obvious things, such as domestic violence and-

Andrew Michael: What was it … ?

Ben Williams: Murder [crosstalk 00:24:26].

Andrew Michael: [crosstalk 00:24:26], and there was one thing where it was like … What was it? People who gamble too much technically count under this sort of umbrella. It’s really weird.

Ben Williams: Yeah, I mean there’s gambling, if you admit to being an alcoholic or a drug addict, there’s a ton of things that can make you lose your permanent resident status, but generally the main way is serious criminal violations. Yeah, and so then if they did decide to revoke a permanent residency, then basically you’re in the same spot where we were at the beginning, where you’re placed in removal proceedings and you’ll still have a chance to go in front of a judge and defend yourself, so …

Andrew Michael: Alright, sounds good. Was there anything else you wanted to talk about in these final minute or two?

Ben Williams: No, I mean, I think that covers it. Just again, with the political climate, these things are happening more and more frequently, so …

Andrew Michael: And the things are also changing really quickly as well.

Ben Williams: Yeah, so they’re trying to make it easier to do … I think we were talking a little bit, easier to do expedited removal, kind of expand the boundary for that, and looking for more and more ways to revoke permanent residency. Again, no one’s really heard of people trying to vote with permanent residency before, but now they realize they might be able to deport them, so that kind of seems to be the ultimate goal, is to remove as many people as they can, so again, this is going to be pretty relevant information for the coming few years are more and more people are placed in proceedings and facing deportation.

Andrew Michael: Alright. Basically make sure you hire a lawyer, because things are changing fast and getting very very complicated, even more so than normal.

Ben Williams: Yeah, definitely … [inaudible 00:26:17], if you’re facing removal proceedings, to find an immigration attorney.

Andrew Michael: Actually, one last question. So I know in criminal courts they will give you a court-appointed lawyer. Do they do that for immigration courts as well?

Ben Williams: No. You have no right to an attorney in immigration proceedings, so it’s on you to … There’s a lot of groups out there that do pro-bono or try to assist people, but yeah, you’re responsible for finding your own attorney.

Andrew Michael: Alright, cool.

Ben Williams: Yep.

Andrew Michael: Alright, I think that’s everything for this Wednesday, so we’re going to sign off. Thanks for watching, everybody. Thanks for listening, and we’ll see you next Wednesday, same time, same place.

Ben Williams: Alright.

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