Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: I have been out of status for a number of years. Currently, I have a couple different petitions going forward. Once is a sibling based family petition, and the other is an employment based Labor Certification. I was told that it would take about another three to four years to be able to adjust my status to that of a Lawful Permanent Resident. There have been many news stories of people begin picked up by INS and deported, I am afraid for myself, my wife and my children. Can I just be deported?

Answer: Under most circumstances, the answer is no. Because you are here in the United States, you are allowed the opportunity to go in front of an Immigration Judge. Only if you had a previous deportation order can INS just take you and deport you without giving you a hearing. It is your constitutional right. Unlike many other countries around the world, even if you are not a citizen or a lawful permanent resident of the United States, you are entitled to due process. This means that you have an opportunity to present your case, to question witnesses, to cross examine witnesses who testify against you, to apply for relief or ways of staying permanently in the United States and to appeal decisions of the Immigration Judge that you are not satisfied with.

Question: What exactly might happen?

Answer: Each case is different. However, if you are targeted by INS, you should be served with what is known as a Notice to Appear. This is the beginning of the process. You might be taken into custody upon which you would be able to try to get a Bond Redetermination Hearing to get bonded out or become free while the immigration case is going forward. Then, over the next six months to two years, you will present your case in front of the Immigration Judge with the hope of winning.

Question: Am I entitled to an attorney?

Answer: Yes. You have every right to have an attorney represent you through these proceedings. However, unlike criminal cases, you must pay for the attorney to help you. The State will not provide one free of charge.

Question: How can the U.S. Constitution protect someone in my position?

Answer: Because the U.S. Constitution gives people their rights as free persons in this country. If the U.S. Government were to just pick someone up and deport them, there would not be any safeguards against possible mistakes they may make. Also, the law allows people who are out of status to obtain their Green Cards based upon certain criteria. The government allows you to present that evidence. Just remember that this is the best country in the world to live in (no offense to those people elsewhere) and one reason it is such a great place to live is because individual rights are valued and treasured by our Constitution.

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