By: Richard Hanus, Esq.
Published: March 9, 2013
With over 11 million+ undocumented individuals living in the U.S. and only a fraction of that population currently the subject of removal proceedings, a commonly asked question is: how does one become unlucky enough to end up under the radar of immigration authorities and placed in removal proceedings?
Firstly, the vast majority of folks in the U.S. without immigration status generally evade detection, and that’s because, they generally steer clear of criminal activity. If you are in the U.S. living and working without immigration status (which, by the way, is not criminal behavior), and are otherwise abiding by our nation’s laws, there is only one reason you will end up in removal proceedings: bad luck. That’s because immigration authorities are not traveling from town to town rounding up folks and asking for their “papers”. Simply, it takes some other stroke of luck…make that bad luck, for an undocumented individual to come to the attention of immigration authorities and placed in removal proceedings.
Based on experiences with clients who have visited my office and hired me to defend them in removal proceedings, the following seem to be the most common scenarios leading to the initiation of removal proceedings against an individual living in the U.S. without immigration status:
Traffic stop: Depending on the jurisdiction, a local police officer may take delight in contacting U.S. Immigration and Customs Enforcement (ICE) during the course of a traffic stop. Mind you, many municipalities across the nation have specific rules against their police contacting ICE, but most do not have such rules. The chances a traffic stop will lead the police officer to contact ICE increases exponentially if the officer has reason to believe the driver of the automobile has been using alcohol, or has outstanding warrants for other criminal cases.
Criminal Arrest: if an individual is arrested on criminal charges – be it a misdemeanor or felony, and whether substantiated or not – there is a decent chance the arresting officer will contact ICE if he comes to conclude the individual is in the U.S. without immigration status.
Denied Application for Permanent Residence: If an individual applies for permanent residence, say based on a marriage to a U.S. citizen, and for some reason the marriage falls apart, or immigration authorities suspect the marriage is a sham, it is not uncommon for a denied applicant to receive a “Notice to Appear” in the mail advising them to appear in court for the initiation of removal proceedings.
Denied Asylum Application: If for one reason or another an application for asylum is denied at the initial Asylum Office level – the Asylum Office – and the applicant is no longer in valid immigration status, the Asylum Office will issue a “Notice to Appear”, instructing the applicant to appear in court. The good news is that the individual will have another chance to present his case for an exhaustive reconsideration by an Immigration Judge.
Reported to ICE by a private individual: ICE receives tens of thousands of complaints from private parties looking to have this or that undocumented individual deported. Given obvious limitations in their investigative and prosecutorial capabilities, ICE can only act on a small fraction of such complaints, and usually only if there is evidence the reported individual is also engaging in some sort of criminal activity
Travel in the U.S. Near An International Border: undocumented individuals riding in a truck, car or train near the U.S./Canada, or U.S./Mexico border have increasingly become the subject of stops by immigration authorities, specifically agents from Customs and Border Protection (an ICE sister agency under the Department of Homeland Security umbrella). This is particularly true of truck drivers and train riders in the Northeast, and Northwest and truck drivers in the Central and South Texas area. Also not uncommon is the sad case of automobile GPS systems gone bad, and unsuspecting undocumented folks being guided into Canada by a GPS system programmed to take them to their destination with the most “efficient” route. When a GPS suggested route leads too close to Canada, the undocumented car driver/rider is better off being guided by a paper map.
Green Card Holders Can End Up in Removal Proceedings Too
The following are the most common paths through which lawful permanent residents end up in removal proceedings:
Lawful permanent residents who apply for U.S. citizenship or for renewal of their green card will have to appear for fingerprinting, a process that will reveal any and all criminal arrests – even cases that have been dismissed or expunged. If the Homeland Security official who ultimately reviews the application sees a criminal conviction possibly places that resident in a “removable” class, the resident will likely, eventually receive a Notice to Appear for removal proceedings. Further, applicants for citizenship sometimes will have their underlying green card application readjudicated to see if the basis of their green card application (e.g. marriage, job offer, etc.) was legitimate.
The criminal background of a permanent resident seeking reentry into the U.S. following international travel will always rear its ugly head. That is, when a green card holder appears before an inspector from Customs and Border Protection, the resident’s criminal background will be a touch screen away. That’s not to say that any kind of criminal background will prompt the initiation of removal proceedings, although it’s exceedingly important for green card holders “with a past” to have a sense of what is on the inspecting officer’s radar, and the type of criminal record that might prompt initiation of removal proceedings.
The completion of a criminal sentence: individuals being released after a prison term, or merely just completing the terms of their probation, are sometimes surprised to get a visit from an ICE officer and served with a Notice to Appear due to the nature of their criminal conviction.
Lastly – Being Placed in Removal Proceedings Is Not Necessarily the End of the Line (and no matter the individual’s immigration status)
Rather, it’s the start of proceedings, and a longer “conversation”……, between the foreign national, an ICE attorney and an Immigration Judge. Integral to that conversation are the legal defenses the foreign national, whether a permanent resident or undocumented, can assert. Such defenses may very well lead an Immigration Judge to issue an order terminating proceedings, and allowing the individual to remain living in the U.S. Sometimes an individual may enter removal proceedings in an undocumented state, and leave these proceedings being issued a resident card. For those without many, or any options in terms of a legal defense in proceedings, it’s imperative that a maximum effort be extended to present humanitarian concerns to the prosecuting ICE attorney, and request an exercise of prosecutorial discretion. Needless to say, an effective defense in removal proceedings, starts and ends with legal representation by seasoned and competent immigration counsel.
PUBLISHED March 9, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois