A discussion of the frightening Notice to Appear

Removal proceedings are one of the most serious consequences that an alien can face. This is especially so for an alien who has lived continuously in the United States for a long time such as more than 10 years. It is also a frightening experience for their United States family who are citizens or permanent residents. United States parents, spouse or children may also suffer extreme and unusual hardship if an alien is deported.

What is a notice to appear?

The issue of a notice to appear (NTA) is notice to a person that removal proceedings has began against him or her. But removal proceedings begin when the notice to appear is filed in an immigration court (8 C.F.R. 1003.14). A notice to appear form I-862 is a charging document containing allegations against a person in removal or deportation proceedings. It alleges that the person is not a United States citizen, states the grounds under which the person is removable, and the specific law that supports removal.

The notice to appear may also state the date, place and time of the immigration court hearing for the person to appear before an immigration judge. However the notice of hearing may be sent in a separate letter.

It is very important that any person who has received a notice to appear tell the immigration court in writing of any change of address within 5 days of any such change so that they may receive notices from the court. Otherwise an immigration court judge may issue what is known as an in absentia order. If a judge makes an in absentia order against a foreign national it can be used by ICE to rapidly remove the foreign national from the United States without the benefit of a hearing.  Avoid an in absentia order by showing up on time for court and notifying the court of any change of address.

The NTA also tells the foreign national of his or her right to an immigration attorney for representation or to answer any legal questions.

Not everyone who receives an NTA is arrested. But a person who is arrested by immigration must be issued an extra Form I-826 Notice of Rights and Request for Disposition. If you wish to stay in the United States to pursue your rights and apply for relief, you must not allow anyone to talk you into agreeing to the allegations and accepting voluntary departure. Preserve your right to a hearing before an Immigration Judge – tick the option to ask to have a hearing before an immigration judge.

Will I be put on a plane and physically removed from the United States when I appear at the immigration court?

No. This is often cited by some persons for their failure to appear at immigration court. The law does not allow a person coming to immigration court to protect his or her rights to be deported. The deportation process must be completed. Furthermore you have a right to an appeal to the BIA or to federal courts. One of the most important things to realize is that deportation is a process and it typically takes many months depending on how crowded an immigration court docket is. With appeals, the process can sometimes take years.

Do I need a lawyer?

Yes you do. Removal proceedings are one of the most serious consequences that an alien can face. This is especially so for an alien who has lived continuously in the United States for a long time such as more than 10 years. It is also a frightening experience for their United States family who are citizens or permanent residents. United States parents, spouse or children may also suffer extreme and unusual hardship from removal of their alien relatives. A person without an attorney may not have his legal rights protected. You can be assured that the government will have its attorneys working to get you deported. So lawyer up and protect your rights!

A lawyer will also help you to find the type of relief for which you are eligible and gather the right evidence (e.g. affidavits, court records etc.) necessary to support your defense and application for discretionary relief that will allow you to remain in the United States.

Conclusion – Pursue your legal rights before an Immigration Judge

The removal process can take years: removal does not happen overnight. Furthermore there are many defenses and relief from removal (e.g. cancellation of removal, withholding of removal, adjustment of status, asylum, registry etc) that may be available depending on the facts of your case. Seek legal counsel to know and protect your rights.

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B2 visa extension of stay

I came to the US from Jamaica on a visitor visa to spend some time with my daughter and see my grandchildren. Three months ago month my daughter slipped on ice and broke her leg and now she relies on me to move around and accompany her when she goes out. The doctor treating my daughter said her leg will take two more months to heal but only one month remains on my I-94 form.

How do I extend my stay in the United States?

To maintain your non immigrant status you must file an application for extension of stay before your current period of authorized stay, on your I-94, expires. It is important that you file immediately. If you fail to apply for an extension before your current authorized stay expires, in the future you could be denied readmission into the United States or a green card.

The application process to extend your stay depends on the type of non-immigrant status that you have. In your case because you have B2 non-immigrant status you must use USCIS Form I-539 with the required fee and supporting evidence. The application must be made to the USCIS service center with jurisdiction for your area.

Required documentation

Original or Photocopy (front and back) of your I-94 Arrival-Departure document. If your I-94 is lost you must file and submit USCIS Form I-102 with the appropriate fee together with Form I-539.
Photocopy of your passport showing that it is valid for the period of your intended stay.
Written statement/letter

You must also submit a written statement explaining in detail;

The reason for the extension,
Departure arrangements, and
Any effect the extension would have on your permanent residence and employment in Jamaica.

I came to the US from Jamaica on a visitor visa to spend some time with my daughter and see my grandchildren. Three months ago month my daughter slipped on ice and broke her leg and now she relies on me to move around and go with her when she goes out. The doctor treating my daughter said her leg will take two more months to heal but only one month remains on my I-94 form.

How do I extend my stay in the United States?

To keep your non immigrant status you must file an application for extension of stay before your current period of authorized stay, on your I-94, expires. It is important that you file immediately.

The application process to extend your stay depends on the type of non-immigrant status that you have. In your case because you have B2 non-immigrant status you must use USCIS Form I-539 with the required fee and supporting evidence. You should direct the application to the USCIS service center with jurisdiction for your area.

Required documentation

  1. Original or Photocopy (front and back) of your I-94 Arrival-Departure document. If your I-94 is lost you must file and send USCIS Form I-102 with the proper fee together with Form I-539.
  2. Photocopy of your passport showing that it is valid for the period of your intended stay.

Written statement/letter

You must also send a written statement explaining in detail;

  1. The reason for the extension,
  2. Departure arrangements, and
  3. Any effect the extension would have on your permanent residence and employment in Jamaica.

Supporting evidence

A signed affidavit from your daughter explaining why you are seeking to delay your departure would be persuasive. Your daughter should also get a letter written by a recognized, licensed health care practitioner treating her. The practitioner should write the letter on his or her own professional letterhead stationery and it should state the specific (explained) medical condition that has caused you to seek an extension to spend more time with your daughter and grandchildren.The letter should also specify the dates involved in your daughter’s injury and that the practitioner expects the medical condition to end at a specified time.

You should also send a copy of your return ticket to Jamaica showing the date of your intended departure. You should show that you have funds to support yourself for the period of the intended stay in the U.S. If you have a job in Jamaica you should send a letter from your employer temporarily excusing you from work for the extra time you will spend in the United States.

What if authorized stay has expired?

The USCIS may exercise discretion to excuse your failure to apply before the end of your authorized when;

1.the delay was due to extraordinary circumstances beyond your control

2. the delay is right for the circumstances

3. you have not violated your non-immigrant status in other ways (e.g. unauthorized work)

4. you are still a good faith visitor to the United States, and

5. you are not in deportation or removal.

Processing time and effect of prompt application

The processing time for I-539 applications can take up to 3 -4 months. The time in which your application is pending will continue your authorized stay in the United States. The current filing fee for a Form I-539 application is available here. If USCIS approves your extension of stay application it will do so in six month increments.

Online Resources

B Visa Refusal Rates by Country

 

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US deportation rate skyrockets; Information-sharing boosts US deportation levels

Some criminal illegal immigrants in the custody of local law enforcement face quicker identification and immigration deportation under a growing biometric-information sharing program between local law enforcement and ICE, the agency of the Department of Homeland Security charged with the enforcement of immigration and deportation laws, and the investigation and prosecution of immigration violations.

Some criminal illegal immigrants in the custody of local law enforcement face quicker identification and deportation under a growing biometric-information sharing program between local law enforcement and ICE, the agency of the Department of Homeland Security charged with enforcement of immigration and deportation laws, and the investigation and prosecution of immigration violations. The program is known as Secure Communities.

What is Secure Communities

Secure Communities is a program that allows ICE to quickly find criminal illegal immigrants in local police custody and begin the deportation process for those who pose a danger to public safety. Under the program DHS can automatically verify the immigration status of aliens taken into the custody of local police and find the most dangerous criminal aliens using the records in its databases.  If the alien has potentially violated immigration laws DHS may issue a detainer against the alien. A detainer is a request to local law enforcement not to release the person before notifying DHS so that DHS may decide if it wants to transfer the person to the custody of ICE during deportation proceedings.

Where Secure Communities exists

As of December 6, 2011 Secure Communities is fully or partially activated in 44 jurisdictions. The fully activated jurisdictions on this date were;

1.  Arizona,

2. California,

3. Delaware,

4. Florida,

5. Georgia

6. Hawaii,

7. Idaho,

8. Michigan

9. Mississippi

10. Missouri

11. New Mexico,

12. North Carolina,

13. Ohio,

14. Oklahoma,

15. Oregon,

16. Rhode Island,

17. South Carolina,

18. Texas,

19. Virginia,

20. West Virginia,

21. Wisconsin, and

22. Puerto Rico.

The jurisdictions that have no active Secure Communities program included Alaska, Washington D.C., Maine, Minnesota, New Hampshire, New Jersey, North Dakota, Vermont, and the United States Virgin Islands. All other jurisdictions were partially activated. In New York, for example, 31 of 62 counties participated in Secure Communities while in Nevada 14 of 17 counties participated. In Maryland and Ohio, the number of active counties were 22 of 24  and 77 of 88 respectively.

 
ICE Deportation of Illegal Immigrants
ICE Deportation of a young woman in error?

 

 

 

 

 

 

 

 

 

 

Is Secure Communities targeting dangerous aliens or is it a broad dragnet?

U.S. Immigration and deportation law experts have expressed mounting concern that the program unintentionally encourages local police to engage in racial and ethnic profiling. Though ICE has a priority system for deportation of criminal aliens and not mere immigration violators, some immigration lawyers and activists argue that the priority system is confusing. Furthermore they argue that ICE has no clear mechanism for ensuring that its agents act according to its priorities. As a result, some non-violent offenders (nannies and gardeners) convicted of minor crimes such as traffic violations are deported. There may also be mistakes in criminal records that lead to deportation of green card holders and other aliens in error. Some of the foreign nationals affected by these errors may choose to leave the United States rather than stay in ICE detention while fighting deportation.

Record level of US deportations and contribution of Secure Communities

Through Oct. 31, 2011, ICE removed more than 110,000 immigrants convicted of crimes, including more than 39,500 convicted of aggravated felony (level 1) offenses like murder, rape and the sexual abuse of children from the United States after identification through Secure Communities.

In Fiscal Year 2011, ICE deported a record-breaking 396,906 people. Fifty five percent of those deported in Fiscal Year 2011—216,698 —were convicted of felonies or misdemeanors, an increase of 89 percent since 2008. This includes 1,119 aliens convicted of homicide; 5,848 aliens convicted of sexual offenses; 44,653 aliens convicted of drug related crimes; and 35,927 aliens convicted of driving under the influence. The number of aliens deported as a result of Secure Communities in Fiscal Year 2010 alone was 35,910.

Want to know if your county participates?  ICE listing of Secure Communities.

Useful Resources:

1. US Immigration and Customs News Release October 18, 2011

2. Secure Communities: Get the Facts

3. Activated Jurisdictions – Is Secure Communities active in your county?

4. Deported teen returns to US. How many Americans are mistakenly banished? – The Christian Science Monitor

This post was last updated on January 08, 2012

 

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