New York Lawyer's Legal Updates

Notice To Appear Issued: Do I Need To Go To Court?

Author: New York Deportation Attorney Alena Shautsova

You received a Notice to Appear issued by immigration authorities, do you need to do anything? The short answer is …Yes! Even if the allegations seem to be ridiculous, you still have to respond and appear in front of the judge. The consequences of not attendance of an Immigration court hearing after you were properly notified about it are drastic: you will be barred from applying for any relief for 5 long years!

One thing you should definitely stay away from: is the thought that “somehow” you will be fine even if you do not go to court. Trust me, you will not be "fine".

Take for example John A, John decides not to show up to court because he is afraid of being deported, technically he will be ordered removed but he would rather take the chance at hiding for the next 10 years or so before he decides to “fix” his status. John A has quite a bit to worry about now that he has made this decision, the most difficult of which is staying out of trouble with “The Law.” If John A is ever caught in any criminal act, or by chance gets stopped for a traffic infringement or in NYC stopped on the street for “questionable conduct” his old order of removal will be reinstated and John A will be expeditiously removed out of the US without even seeing a judge.

The problem with this expedited removal is that it also carries a bar depending on how long John A has been in the US unlawfully. To overcome these bars John A will have to get a waiver which is extremely difficult to qualify for, and very expensive in terms of attorney’s fees.

John B decides that he is going to appear in court. He is already making better decisions then John A… he also consults with his attorney and is made aware of his options. 80% of the people who come to my office are able to adjust their status even when they have a notice to appear for deportation proceedings. Something can almost always be done to improve the situation of the individual within the US. If there is no way to adjust status, there might be additional options to be explored. While these options are used as a last resort because they do not give one a green card, the individual may still apply for work authorization and the government will not deport them.

  • Prosecutorial Discretion – When the government through its discretion chooses not to deport an individual. (Deferred Action is a form of prosecutorial discretion.)
  • TPS (Temporary Protected Status) – Given to individuals from specific countries during specific times, this must be applied for within the governments specified time frame in order to obtain the status. Usually given to individuals of countries who have recently experienced a natural disaster.
  • Voluntary Departure – The absolute worst case scenario when you return home to your home country as there is no alternative. The good news is, with Voluntary Departure you will not be prejudiced when coming back to the US in the future, and it does not carry 10/20 year deportation/removal bar.

The court proceedings for deportation are usually handled in 2-4 hearings, (1-2 Master Hearings and 1-2 Individual hearings) that are spaced out based on the court’s current work load. To give an example, New York Immigration courts are extremely backed up, the next court date is usually scheduled within 1-2 years from the date of the appearance, sometimes even 3 years. This can be a pro in most instances and only in rare circumstances is a con. While you are waiting for your next court date your circumstances may change for the better: you may marry a US Citizen and become eligible to adjust status without a waiver, your US citizen child may turn 21 and be able to sponsor you the same as a spouse would for Immigration purposes, country conditions of your home country may change allowing you to renew your Asylum claim…. Many things can happen in 2-3 years including change in Immigration laws that may give you a chance to stay in the US.

If, however, you learned that you were removed and you never received a notice, you might have a chance to reopen your case. Such motions are extremely hard to win, and each such a motion has to be accompanied by a detailed account of events and supporting evidence.

The bottom line: do not ignore the correspondence from the government, even if it is stressful and unpleasant to handle it.

13 June 2016
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