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Guarding Against the Risk of Deportation


Guarding Against the Risk of Deportation

The U.S. Supreme Court recently recognized the deportation process as a grave and drastic measure often amounting to lifelong banishment and exile. While immigration law has been likened to the tax code in complexity, it still falls under the civil, not criminal, code despite its consequence on life and liberty.

Recent trends reveal deportation actions are not just originating from enforcement operations, raids and targeted “pickups.” Surprisingly, many foreign nationals are placed in removal proceedings because of their own actions. Examples include:

  • Denied asylum applications. Individuals who apply for asylum and are denied by the asylum office are immediately placed in removal proceedings. A referral to the immigration judge is often a one-way ticket to deportation proceedings. While the immigration judge has jurisdiction to hear the claim fresh, only the strongest and well supported claims win. Until recently, asylum applications could take years to be heard and during the long wait an applicant could gain work authorization. Now in an effort to deter strategic asylum claims, new cases filed are being streamlined for quick adjudication. This is welcome news for many, but can also be difficult for others to obtain proof and support of their claim while immigration judges are being discouraged to grant continuances.
  • Traveling abroad. Every time an individual travels abroad and returns to the United States, his or her immigration status is subject to scrutiny in the inspection process. This includes all visa holders, lawful permanent residents and even, at times, United States citizens. A U.S. Customs and Border Patrol (CBP) officer has access to databases that include full immigration chronology and arrest history, along with authority to question the individual. Phones, text messages, emails and computer records are being searched, and there are limited rights to privacy and to an attorney at the border or point of entry.
  • Adjustment applications. Whether family, marriage or work based, applications for residency filed with U.S. Citizenship and Immigration Services (USICS) trigger background investigations, document verification and in-person interviews that can turn into interrogations. While most well-documented applications are approved, those with irregularities or prior immigration violations will result in enforcement/deportation action.
  • Citizenship. Any person who is eligible to file for naturalization should apply to ensure the protection of the laws and rights afforded by the United States. However, any lawful permanent resident with criminal, tax or child support issues must be proactive to correct those problems prior to filing.
  • Arrests. The time to consult with an immigration attorney is before a criminal matter is resolved, not afterwards. Gone are the days when a criminal defense attorney can tell his or her client to worry about the deportation consequences after the criminal case is resolved. Critical planning and plea strategy may save the immigration day.

Every foreign national must proactively maintain and ensure compliance with the immigration laws of the United States. Many violations and mistakes can be rectified if addressed swiftly using various waivers provided by the immigration code. Even some individuals who are unlawfully residing in the United States, who entered without status or cannot rectify their prior status, may have rights and relief from removal. Those individuals need expert representation, knowledge and preparation in order to avoid deportation consequences or prevail in the painstaking and stressful process.

Linda Osberg-Braun, is board certified in immigration and nationality law, and a founding partner at Osberg-Braun & Ruiz Immigration in Miami.

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