Deportability and Inadmissibility in Removal Proceedings

Foreign nationals in removal proceedings have certain rights. In some cases the government is required to prove its charges against the individual, and in other cases the individual must disprove the charges. If you are in removal proceedings, a competent immigration attorney can effectively examine the facts and key legal issues involved in your case to provide you with the best possible defense that may be available to you. In addition, a skilled attorney can protect your rights and force the government to follow the law. At The Law Firm of Shihab & Associates, Co., LPA, we have decades of combined experience successfully representing our clients in removal proceedings. If you have questions about removal, contact us for a consultation.

A foreign national faces many challenges being in removal proceedings including the possibilities of being sent home and being separated from family members or loved ones in the US; often time the foreign national is well integrated in the US that is virtually the only “home” they know. We possess the sensitivities and legal knowledge to represent clients facing such tremendous legal challenges. Contact us today for to speak with a competent immigration lawyer.

It is important that you attend or the immigration judge can enter a ruling in your absence, “in absentia,” and you will not have the opportunity to defend against the charges. However, if you were not properly notified of the proceeding, you may have a defense against such an order. Removal proceedings begin with a charging document called a Notice to Appear (NTA) that is served on the foreign national respondent. If the foreign national does not appear at the hearing, the immigration judge can rule in his/her absence. Without proper service of the NTA, the Immigration Judge cannot enter an in absentia order. The NTA must be served on the person. If this is impracticable, then it is served by regular mail to the person or attorney of record. If removal proceedings are held against you in your absence, the judge cannot enter an order against you if you were not properly served with the NTA. Additionally, it is critical to provide notice of any change of address to the USCIS and the immigration court in order to avoid an in absentia order.

There are two types of removal proceedings, those based on inadmissibility and those based on deportability. Deportability applies to foreign nationals who lawfully entered the US. Inadmissibility applies to those foreign nationals who entered the US illegally. Each has different rules and standards of evidence required, and it is imperative to know which applies in your case.

Foreign nationals charged with inadmissibility are assumed by the court to be inadmissible, and they must prove that beyond a doubt that they are entitled to be admitted to the United States and that they are not inadmissible under INA §212. In other words, the foreign national has the “burden of proof.” However, for permanent residents (green card holders), the government has the burden of proof and must prove that the person is inadmissible.

Foreign nationals charged with deportability do not have to prove they are not deportable. Rather, the government has the burden of proof, meaning it must prove that the person is deportable. The government must have enough proof to reach the standard of “clear and convincing evidence.” This standard of proof is lower than the “beyond a reasonable doubt” standard in criminal cases, and higher than the “preponderance of evidence” standard (meaning more likely than not, or more than 50% likely) in civil cases. If the government does not establish clear and convincing evidence, the removal proceedings must be terminated. Therefore, it is important not to concede deportability because you can lose this right to dismiss the proceedings if the government cannot provide enough proof.

Evidence can be suppressed in removal proceedings if its use is not “fundamentally fair,” such as evidence from illegal searches that violate the Fifth Amendment or searches that violate the agency’s own regulations. A skilled immigration lawyer can identify whether evidence should be suppressed and can do so on your behalf.

Respondents in removal proceedings have a right to counsel. However, unlike criminal proceedings, a respondent in a removal case does not have the right to a court-appointed attorney free of charge, but can retain a private attorney.

If you have questions about removal, deportability, inadmissibility, or any other immigration matter, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney. The competent attorneys at The Law Firm of Shihab & Associates are experienced in defending foreign nationals in removal proceedings, as well as other areas of immigration. We represent clients nationwide in various matters including green cards and permanent residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, investor visas, PERM applications, and many more. We will not tire until we get the desired results for you within the bounds of the law. Contact us for a consultation.