Removal Proceedings

Under the Trump administration, immigration attorneys fighting for their clients in removal proceedings face unprecedented challenges. Luis F. Hess is an experienced immigration attorney who defends the rights of noncitizens before the courts and administrative agencies in Houston and The Woodlands, TX.

Luis F. Hess understands the most effective and aggressive strategies that can be used in the immigration courts to fight back against the increasingly hostile treatment of respondents in removal proceedings. He understands the substantive case law and knows the best strategies to fearlessly advocate on your behalf to lay the groundwork for your success.

After a criminal conviction, he helps his clients assert defenses to removal proceedings. Other grounds for a deportation proceeding could include committing marriage fraud, violating the terms of a visa, or falsifying immigration documents.

Defenses to a removal proceeding for a legal permanent resident or nonpermanent resident can include the cancellation of removal or a motion to reopen the removal proceeding. Alternatively, an immigration attorney can challenge the category of crime or the criminal conviction itself.

 

Attorney for Removal Proceedings in The Woodlands, TX

Contact Luis F. Hess about your immigration case is you are facing a removal proceeding. Find out more about ways to seek the cancellation of the removal. Not only does Luis F. Hess represent clients during the hearings for removal, but he can also help a client petition the court to reopen the removal proceeding immediately after the final order of removal is entered.

Many of our cases are referred to us by criminal defense attorneys in the process of resolving a criminal case. Those felony and misdemeanor criminal cases can include driving while intoxicated, domestic violence, fraud, theft, or drug offenses.

We can often work with the criminal defense attorney to help the client understand the consequences of the plea and find ways to negotiate a result that lessens the immigration consequence. Other clients come to us long after the criminal case has already been resolved in court.

From his office in Shenandoah, just north of The Woodlands, Luis F. Hess represents clients in immigration cases throughout the greater Houston—Woodland Metropolitan area including the cities of Conroe, Shenandoah, The Woodlands, Spring, and Houston, TX.

Focused on learning new ways to help his clients, Luis F. Hess is scheduled to attending the 2018 Removal Defense Conference as presented by the American Immigration Lawyers Association (AILA). Let him put his knowledge and experience to work for you.

Call (281) 205-8540 today to discuss your case.

Procedures Used in Removal Proceedings

Congress has exclusive power to enact immigration laws. Federal law provides for the removal of noncitizens within U.S. borders who are determined to be “deportable” and noncitizens apprehended at the border who are determined to be “inadmissible.”

A noncitizen who is apprehended within the borders of the United States may also be determined to be inadmissible. Such an individual will not be subject to removal as a consequence of this finding, but will be barred from reentering the United States after leaving voluntarily.

A formal determination of whether an individual is deportable or inadmissible is made by an Immigration Judge at a removal proceeding. The proceeding is a civil, not criminal, proceeding and must adhere to legal procedures required by statute.

In a removal proceeding, DHS must prove by “clear and convincing evidence” that an alien admitted to the United States is removable. As provided in § 1227(a)(1)(A), an alien is removable if she was inadmissible “at the time of entry or adjustment of status.” 

The Immigration Court schedules the removal hearing. A notice to appear is issued that states the time, place and date of the initial removal hearing, often called the "notice to appear." Thereafter, the Department of Homeland Security charges the person with removability and began removal proceedings against the person.

Under § 1182(a)(6)(C)(i), an alien is inadmissible if, “by fraud or willfully misrepresenting a material fact, [he or she sought] to procure ... or has procured[ ] a visa, other documentation, or admission into the United States or other [immigration] benefit.”


Pre-Removal § 1226 Standards

8 U.S.C. § 1226, INA § 236 controls ICE's pre-removal detention. Section 1226 explains the rules for detention while removal proceedings are ongoing and before the issuance of a final order of removal. Section 1226(a) allows for detention pending a decision in removal proceedings unless mandatory detention under subsection (c) is required for aliens who have committed certain offenses.

If a detention is to continue, then Section 1226 places the burden on the government to show that the alien is a flight risk or a danger to the community. Detention is authorized for a reasonable amount of time.

During that time, the authorities must make an individualized inquiry into whether detention is still necessary to fulfill the statute's purposes of ensuring that an alien attends removal proceedings and that his release will not pose a danger to the community.


Post-Removal-Order § 1231 Standards

The rules for a detention after removal has become certain are set out in 8 U.S.C. § 1231, INA § 241. The purpose of the Section 1231 detention is to secure an alien pending the alien's certain removal. Detention under Section 1231 provides the Attorney General with ninety days to remove an alien from the United States after an order of removal becomes final.

During this “removal period,” detention of the alien is mandatory. If the alien has not been removed and remains in the United States after the ninety-day period, the rules provide that although the alien's detention may continue, the person's release is permitted under the supervision of the Attorney General.

Section 1231(a) allows ICE to detain an alien for a “reasonable time” necessary to effectuate the alien's deportation, but indefinite detention is not authorized. 

In some cases, a prolonged detention becomes a violation of due process. Keep in mind that § 1231(a) does not authorize the Attorney General to detain aliens indefinitely beyond the removal period. Instead, it limits an alien's post-removal-period detention to a period reasonably necessary to bring about the alien's removal from the United States.” If the removal is no longer "reasonably foreseeable," continued detention is no longer authorized by statute.


Removal Proceedings for a Fraudulent Marriage

An alien is removable for failing to fulfill his or her marital agreement when that agreement “was made for the purpose of procuring the alien's admission as an immigrant.” § 1227(a)(1)(G)(ii).

To prove a fraudulent marriage, DHS must demonstrate that the parties did not “intend[ ] to establish a life together at the time they were married.” Ibrahimi v. Holder, 566 F.3d 758, 765 (8th Cir. 2009) (citation omitted).

The conduct of the parties before and after the marriage is relevant to their intent at the time of the marriage.


Motion to Reopening a Removal Proceeding

The authority to reopen removal proceedings is provided either by regulation or by statute. In the regulatory context, an alien can invoke the power to sua sponte reopen proceedings under either 8 C.F.R. § 1003.23(b), which provides the Immigration Court's authority, or 8 C.F.R. § 1003.2(a), which provides the BIA's authority.

After the alien's departure from the United States, regulations preclude motions to reopen the case before the Immigration Court or before the BIA when the action is filed by any alien who is subject to removal, deportation, or exclusion proceedings.

These regulations strip the BIA and the Immigration Court of jurisdiction to consider motions to reopen filed by departed aliens (often called the “departure bar”). Under the statutory scheme, Section 1229a provides that an alien may file one motion to reopen his removal proceedings, but he must file that motion within ninety days after the date of the final order of removal.


Cancellation of Removal

If the Department of Homeland Security charges a person with removability and beings removal proceedings, notice is provided by filing a "Notice to Appear" in immigration court. If a person concedes the factual allegations contained in the Notice, the person can still seek cancellation of the removal.

In order to establish eligibility for cancellation of removal under Section 1229b(a), the person must demonstrate the following:

  • the alien has been lawfully admitted for permanent residence for not less than five years;
  • the alien has resided in the United States continuously for seven years after having been admitted in any status; and
  • the alien has not been convicted of any aggravated felony.

The Attorney General may cancel the removal of an unlawfully admitted alien or adjust the status to a permanent resident if the alien has met all of the following conditions:

  • the alien has been continuously present in the United States for 10 years;
  • the alien has been a person of good moral character during that time;
  • the alien establishes that removal would cause an exceptional and extremely unusual hardship; and
  • the alien has not been convicted of certain enumerated offenses.

This article was last updated on Friday, April 13, 2018.