Immigrant Rights Groups Sue over Artesia Deportation Process

The American Immigration Council, the ACLU, the National Immigration Project of the National Lawyers Guild, and the National Immigration Law Center filed a complaintagainst the federal government, challenging its policies which deny due process to refugee mothers and children being detained in Artesia, NM. The complaint asks the court to halt deportations, calling Artesia a "deportation mill," created to send Central American mothers and children home to face certain harm, without any meaningful opportunity to be heard. 

The Notice to Appear and Removal Proceedings

Deportation and the Notice to Appear

I’m in Deportation Proceedings. Now What?

Question: I have been served with a Notice to Appear and been put into Removal Proceedings. What do I do?

Answer: The Removal Proceedings begins with issuance of a Notice to Appear and there are very specific requirements that must be included in Notice to Appear. If they are not included, you can try to ask for proceedings to be terminated.

Question: What type of requirements are supposed to be in the Notice to Appear?

Answer: The following items are required: In removal proceedings under section 240, written notice (in this section referred to as a ‘notice to appear’) shall be given in person to the foreign national (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any). Thus, the first item is that it must be properly served on the foreign national in order to give notice of the hearing.

It must specify the following:
“(A) The nature of the proceedings against the alien.
“(B) The legal authority under which the proceedings are conducted.
“(C) The acts or conduct alleged to be in violation of law.
“(D) The charges against the alien and the statutory provisions alleged to have been violated.
“(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel
“(F)(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted. The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien’s address or telephone number and the consequencesof failure to provide address and telephone information.

Next, there must be the time and place at which the proceedings will be held and the consequences of the failure, except under exceptional circumstances, to appear at such proceedings.

There must be listed the time and place of the proceedings.

Question: Will an attorney be appointed for me?

Answer: No. However, you do have the ‘right’ to have an immigration attorney of your choosing. Therefore, the first hearing will usually be continued in order to give you an opportunity in which to obtain an immigration attorney to help you.

Question: Should I admit the crimes listed on the Notice to Appear?

Answer: You should never admit the crimes. It is the burden of the government to prove that you are removable by clear and convincing evidence and that burden cannot be shifted because you simply admit to the crime.

Question: What about the grounds of removability? Should I admit to those as well?

Answer: First, you should make certain that you have an immigration attorney who is familiar and an expert in deportation and removal proceedings. In any event, some items of removability you could not realistically deny. However, many you can deny. For example, if you are being charged as an aggravated felon, there is a possibility that you can fight this and show you are wrongfully being classified as an aggravated felon.

In any event, it is very important to plea properly to the Notice to Appear and to fight the issuance or contents of the Notice to Appear if they are not properly served or placed in the Notice to Appear.

Try Federal Habeas Corpus to Vacate a Conviction

Try to Vacate a Crime with a Federal Habeas Corpus

I have been deported outside the U.S. Now What?

I have been deported outside the U.S. Now What?

Question: About 3 years ago, I was deported outside the United States, and I feel it was not done properly and that I was improperly deported. What can I do?

Answer: There are several things that may be done, but a Habeas Corpus is available in certain circumstances. Habeas corpus review can be used to determine whether: (1) petitioner is an alien; (2) petitioner was ordered removed under such section; and (3) petitioner is an LPR, or was granted refugee or asylum status. In determining whether the person has been ordered removed, the court’s inquiry is limited to whether such an order was in fact issued and whether it relates to the petitioner.

Therefore, if you believe you were a lawful permanent resident, but it was wrongfully determined you were not, this option is available to you.

Question: What is I committed a crime and that is why they took away my residency? Can I used Habeas Corpus in that event? I tried to vacate the crime in State Court where I committed the crime, but it was denied.

Answer: There has been lots of case law, motions and documents filed to try to vacate or reduce the conviction so that you would either not be considered deportable or removal and/or so you would not be considered an aggravated felon. However, when the State Court remedies have failed, there is the option (depending on your jurisdiction) of doing a Federal Habeas Corpus in order to try to vacate a State Crime. AEDPA §§101-06 substantially reduced the ability to use 28 U.S.C. §§2254 and 2255 to attack State and Federal convictions. There is now a one-year statute of limitations for filing a habeas petition in federal court attacking a state conviction, §2244(d)(1), or federal conviction, §2255.

Thus, if your crime occurred many years ago, this option will not be available. Unfortunately, AEDPA also strengthened the presumption of correctness of the convictions and restricted successive petitions. However, petitions have been granted to vacate a conviction where the court would not have accepted the plea had it been aware of the immigration consequences.

Question: What if I applied after being released from custody? Will the Court have Jurisdiction?

Answer: Jurisdiction exists for habeas even where alien is released from incarceration. Certain states permit a vacatur of a plea only if filed within a limited time period. For example, Florida permits a party to vacate a plea only if it is filed within 2 years of the conviction.

Question: What is I am time barred from bringing this type of post-conviction relief?

Answer: Where a defendant is time-barred under state post-conviction procedures, he or she may be able to bring a Padilla claim under federal habeas. Ineffective assistance of counsel may be raised under certain circumstances in light of state procedural bars.

The defendant must allege and prove that she would not have entered into the plea if informed of the possibility of removal. Vacation of a plea will vacate the conviction for immigration purposes as long as it was not pursuant to a rehabilitative statute or because of immigration hardship. Unlike a vacatur of a conviction, a vacatur of a sentence may be done for any purpose, including immigration avoidance.

Question: What is I only needed a couple days less on my sentence not to be considered an aggravated felon?

Vacating a sentence is different than vacating a conviction. A party may vacate a sentence for any reason, including immigration avoidance, and it must be given full faith and credit by the Immigration Judges and the Board of Immigration Appeals. There is case law where a sentence was modified nunc pro tunc expressly to avoid deportation as an aggravated felon, IJ and BIA must recognize it.

Question: What about ineffective assistance of counsel?

Answer: If not properly raised previously and depending on your jurisdiction, you many be able to bring this claim under a Federal Habeas Corpus to challenge the State Conviction.

It will not be easy, but may be the difference between coming back to the U.S. versus never coming back.

Committed a crime? Maybe you should not be deported due to retroactivity.

Military Naturalization. How to become a U.S. Citizen.

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