Post-Conviction Relief for Immigrants

(H)  Removal Proceedings.  If the immigration authorities feel they have cause to believe a noncitizen is deportable or inadmissible on account of a conviction, they can arrest him or her and file a Notice to Appear (NTA) with the local immigration court, and can transport the noncitizen practically overnight to a detention facility, often in a remote area such as Eloy, Arizona or El Centro, California, and begin removal proceedings there, far from the noncitizen’s home and support system.

            The noncitizen can attempt to obtain release on immigration bond, by a procedure very similar to the posting of cash or a bond in a criminal case.  A very harsh 1996 revision of the immigration laws provides for mandatory detention (i.e., detention without possibility of bond) for most noncitizens whose deportation is sought on the basis of a criminal conviction.[30]  In brief, detention is mandatory for all classes of deportable noncitizens except those convicted of one crime of moral turpitude (and then only if no sentence of one year or more has been imposed), any number of convictions of domestic violence, stalking, or child abuse, and convictions of high-speed flight from a border checkpoint.[31]

            During removal proceedings, the noncitizen can assert that s/he is a United States citizen, that s/he has not received a final conviction, that the conviction does not meet the definition of a deportable offense, or that s/he is eligible for some form of relief from removal in immigration court.[32]

            If the noncitizen does not prevail on any of these issues, s/he will be ordered removed, but may appeal the deportation order to the Board of Immigration Appeals (BIA), a national administrative appeals court located in Falls Church, Virginia.  An appeal can take from four months to several years to complete, although the BIA is speeding appeals up for noncitizens held in detention.

            At the conclusion of the appeal, if the noncitizen loses, the BIA dismisses the appeal, and the immigration authorities are free to deport him or her immediately.  It is also true, however, that the noncitizen has 90 days after the BIA action within which to file with the BIA a motion to reopen the deportation proceedings, although there is no guarantee that the client will not be deported before this time comes.  The foreign national can file a petition for review of the removal order with the federal circuit court of appeals, and seek a stay of removal pending the conclusion of those proceedings, or in some circumstances file a federal habeas corpus petition under 28 U.S.C. § 2241 challenging mandatory detention or the lawfulness of a removal order.

[30] INA § 236(c), 8 U.S.C. § 1226(c).

[31] Ibid.

[32] For a valuable description of the different forms of immigration relief and their crime-related requirements, see N. Tooby & K. Brady, Criminal Defense of Immigrants, Appendix F (2003); California Criminal Law and Immigration, Chapter 11.