New York Lawyer's Legal Updates

A Right To An Immigration Hearing

Author: Immigration attorney Alena Shautsova

A right to an immigration hearing comes to play when DHS tries to remove an individual who is suspected of Immigration laws violations. I have met many who did not go to court for their Immigration hearings because of fear of being deported. These people perceived a hearing as a punishment, as a tool the government used to “send them home.” A hearing in fact also can be a way to remedy one’s situation. It is a due process right, and not everyone is entitled to it. There are many relieves from deportation/removal that can be available only before an Immigration judge; there are certain “legal situations” that can be resolved “better” before a judge, rather than before USCIS.

Certain individuals waive their right to a hearing before an Immigration judge automatically. For example, it is persons who came to the United States using Visa Waiver Program. As one court put it: because a continuously present resident alien has a constitutional right to a pre‐removal hearing, e.g., Landon v. Plasencia, 459 U.S. 21, 32 (1982), the waiver of that right acts as the “linchpin of the program,” Handa v. Clark, 401 F.3d 1129, 1135 (9th Cir. 2005), ensuring that the statute accomplishes “Congress’s goal of allowing VWP participants expeditious entry into the country but streamlining their removal.”

The Visa Waiver Program (“VWP”) allows qualified citizens and nationals of designated countries to visit the United States for up to ninety days without obtaining a visa, provided that they agree to waive any right to contest removal other than by seeking asylum. 8 U.S.C. § 1187(a), (b)(2).  Prior to 2009, the Department of Homeland Security (“DHS”) required applicants to complete and physically sign the I‐94W Nonimmigrant Visa Waiver Arrival/Departure Record Form, which memorializes the terms of the program and contains a certification that the applicant waives any right to a hearing.    In response to legislation designed to modernize and strengthen the security of the VWP, DHS developed the Electronic System for Travel Authorization (“ESTA”), which makes the I‐94W available online and enables applicants to receive an automated determination of eligibility in advance of travel. So, I 94W cards were replaced with an electronic pre-registration, and now individual “waives” all his rights to a hearing by simply entering the data into the ESTA system. Once a person is using this ESTA system to enter the country, he/she cannot “defend” from removal in any other way than asking for asylum.

For example, let’s say X was inspected by ICE while working at a factory and it was discovered that X came to the US with an Italian passport. X’s 90 days authorized stay expired two years ago. ICE decided to remove (deport) X, but X stated he was married to a US citizen and wanted to get a green card… ICE issued an order of deportation to X immediately, as X did not qualify and did not state he wanted to file for asylum… Had X filed for a green card first, even if the 90 days expired, X had a chance of receiving it! ICE and USCIS officers have a discretion to place one into removal/deportation proceedings once they overstay their 90 days. If they choose not to, a person with the expired 90 days can still adjust.

It is generally a bad idea to ignore a government issued notice, and it is a terrible idea to ignore a notice to appear for an Immigration hearing.

02 December 2016
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