What happens when US Immigration authorities decide, for any reason, that an alien has to be removed from the country? The entire process starts with the targeted alien being issued or served with a document known as the Notice to Appear (NTA).

Many prefer to call it the “Notice That Makes You Want to Disappear!” For anyone deemed to be in the US illegally, it is no ordinary piece of paper. Usually referred to by its official Form name, “I-862”, the Notice to Appear (NTA) is used by Immigration authorities, that is, the Immigration and Customs Enforcement (ICE) unit of the Department of Homeland Security (DHS), to initiate removal proceedings against persons deemed to be in the United States illegally or without official approval.

The NTA is a very nuanced document. Even the manner it is served (or lack thereof) on the person the government seeks to remove from the country often makes a difference regarding whether certain persons get removed or not. For example, if the Notice to Appear is sent to a wrong address, or a wrong person, or a person whose name is substantially mis-spelt on the document, removal proceedings may not be said to have properly commenced against a person. Such scenarios have often provided relief from Removal (even if just temporarily) to countless individuals.  It often takes an attorney well-versed in Immigration law to notice this “loophole” and deploy it to the alien’s advantage. 

The nuanced, specific and highly-technical nature of the NTA can be seen in its very structure. The first items usually encountered in the document are often meant to establish the identity of the person targeted for removal. These include the Respondent’s Alien Identification Number (also referred to as the “File Number”); a Respondent-specific DHS-ICE “event number”; the “Subject Identification Number” and the Respondent’s date of birth. 

Other important identifiers include the Respondent’s full and correct name, address (which partly explains why anyone with alien status in the United States must furnish Immigration authorities with his or her current address) and telephone number.

Aliens who receive a Notice to Appear are grouped into neatly-defined categories, which can be seen on the NTA itself.

This article focuses on two main categories of such aliens: the first are overstays, especially students and similar types whose non-compliance with the terms of their visas (i.e. continued enrollment in the academic programs and schools for which reason they came to the US in the first place) are flagged in the vast databases of the Immigration Enforcement services. This group also includes those aliens otherwise legally resident in the US but who have committed crimes that make them removable (yes, “US permanent residents” are considered aliens; so much for “permanent”!)

The second group comprises those who entered the US without inspection (i.e. EWI, or those who entered without visas of any kind), which is mainly people who sneaked through border points of entry, managed to “lay low” for a certain period of time and then came to the attention of law enforcement through committing a crime or other malfeasance.

The NTA usually states the reasons the government, through DHS-ICE, seeks to remove the person from the country. Since an individual’s circumstances will be different from another’s, the reasons so stated in the NTA—and which are officially known as “allegations”—will vary from person to person. But certain facts about the individual considered removable by the government are also standard in the “Allegations” section of the NTA and are asserted therein by the government.

The allegations (or “charges of removability”, as the government prefers to reference them) usually contain certain assertions that apply to all who receive a Notice to Appear.

These include charges that the individual targeted for Removal is not a Citizen of the United States; that the individual is a citizen of a foreign country, which is usually also named in the Notice; that the person was admitted into the United States on a particular date in the past and in a particular non-immigrant status (for those who were “inspected” upon arrival in the United States); and the specific action or statutory violation that makes the person removable from the United States.

This latter will, of course, vary from one individual to the other: as already noted, certain persons are removable only because they committed specific crimes after they became US permanent residents---and before they could become US Citizens.

For some people who were not US permanent residents before they “got dragged” into Removal proceedings, so to speak, they could be charged in the Notice to Appear with removability based on certain criminal offenses.

This is usually the case if such offenses are classified as “Crimes Involving Moral Turpitude” (CIMT); they could also be “aggravated felonies”, another Immigration law term-of-art. Those crimes are usually listed in or are covered by Sections 212 (a) and 237 (a) of the Immigration and Nationality Act (INA) and are distinguished from crimes that do not make individuals removable. Usually, for crimes considered CIMTs and aggravated felonies in the Immigration context, punishment after conviction—or for which there is the possibility of punishment being imposed—include more than a year in jail, even if such a sentence is suspended, stayed or imposed / ordered as a period of probation.

Another common infraction usually listed among the charge (s) of removability on a Notice to Appear include an alleged violation of INA 237(a) and its various sub-sections, particularly the charge that the individual married a US Citizen only with the intent to procure a permanent visa (green card) by fraud or material misrepresentation, in violation of INA 237 (a)(1)(B).

Any individual who finds himself / herself in this situation is strongly advised to enlist the services of an Immigration attorney versed in such representations or matters, even if it is only at the stage where the USCIS has issued a Notice of Intent to Deny (NOID), after the US-Citizen spouse filed the I 130 petition. 

If the USCIS ultimately rejects the I 130 petition, such an individual (the non-US Citizen spouse) will be placed in removal proceedings, with the issuance of a Notice to Appear. In addition, individuals who are Conditional Residents and who fail to “remove” those conditions for whatever relevant reason (s) could also be subject to Removal based on the same rationale.

For those who entered the US without inspection (sneaking across the border or EWI), later come to the attention of law enforcement or Immigration authorities who seek to deport them solely on such a basis (the EWI) and nothing else (i.e. no crime committed upon arriving in the US), the charge of removability usually references the so-called “new” INA 212 (a)(6)(A)(i), which recommends for Removal any alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General of the US.

It is important that any person who receives a Notice to Appear meant to initiate such a person’s removal from the US pays critical attention to the charge (s) of removability. Language therein, or a lack thereof, can often mean relief or reprieve from removal for the person thus targeted. Often, in such situations, the charge is usually wrong or is inadequate to effect the person’s removal (i.e. there is an argument for reprieve under the “petty offenses exception” in INA 212 (a)(2)(A)(ii)(II) ).

It is important to note that receiving the Notice to Appear (NTA) is not the proverbial “kiss of death” to your chances of remaining in the US or even gaining legal status in this country.

As previously noted, your best chance of transforming receiving an NTA into a non-issue is to immediately contact an experienced and knowledgeable Immigration attorney. Such a professional, for instance, will be more likely to spot glaring procedural flaws in the document to get you off the hook, so to speak. For instance, the NTA might have been sent to your actual address but somehow contains another person’s name, or your incomplete name.

A savvy attorney can get your case dismissed in court on those or other procedural grounds such as improper service, however temporary such a relief might be (before the government issues a new or corrected charging document).

You (or your attorney acting on your behalf) can also deploy more substantive defenses in your bid to defeat the NTA and avoid Removal. Defenses that can be raised, which itself will only arise after you must have conceded the charges of removability at your initial Master Calendar Hearing, depend on what you were charged with. If the charge was that you entered the US without inspection (EWI), the government has to prove you are removable on this ground. The same burden rests on government if the charge is that you are removable on any of the relevant criminal grounds, even though you are a permanent resident of the US and not just a person who “sneaked” into the country.

For example, government might have relied on documents tendered in your criminal case which correctly identified you as the person who committed or was convicted of a crime; but the supposed crime could also have been subject to the “petty offenses” exception, which makes you ineligible for Removal.

If you are indeed subject to Removal, meaning there are no substantive defenses, it still does not infer that your Removal from the United States is inevitable.

For US legal permanent residents (LPR) charged with removability after being convicted of a crime or those charged with being in the US without inspection (EWI), there is the relief of Cancellation of Removal. This relief will be available for the former if the following conditions are applicable: they have been in LPR status for not less than five years before commission of the crime that is the basis of their removal proceedings; or they have resided in the United States for not less than seven years in any status; and they have not been convicted of an aggravated felony.

In the case of those charged with removability in Immigration Court because of their EWI status (non permanent residents), the relief of Cancellation of Removal is available if the person has resided continuously in the United States for at least ten years; is adjudged by the Court to have been a person of good moral character throughout that period of ten years; is not otherwise subject to criminal bars arising from a conviction of any crime outlined in relevant Immigration statutes, such as INA §212(a)(2); INA §237(a)(2), or §237(a)(3); and establishes that removal would result in “exceptional and extremely unusual hardship” to the alien’s spouse, parent, or child who is a United States citizen or legal permanent resident.

Other forms of relief a person can request before an Immigration Judge after being charged with removability on a validly-served NTA include the following: asylum; withholding of removal; protection under the Convention Against Torture (CAT); voluntary departure; and deferred action.

These options are better explained to you by an attorney versed in the practice of Immigration law. He or she will also be better placed to advise if any of those defenses and reliefs are applicable to your matter or if your circumstance merits such relief.

Our law firm has successfully defended clients facing Removal / Deportation from the United States, through representation in US Immigration Courts, the Board of Immigration Appeals (BIA), etc. (See our Success Stories)

US Immigration “waivers” simply mean that you ask immigration authorities here to “forgive” your past infringements of US laws, statutes and / or procedures. 

You will certainly need an Immigration “waiver” if you initially entered the US “without inspection” (that is, illegal entry into the US, without authorization from Immigration authorities, through issuance of a visa or other legally-acceptable means), then some years later marry a US Citizen. At the time you apply for Adjustment of your status to US permanent resident after that marriage, you will have more hoops to jump through before you can enjoy this “fruit” (permanent residence) of an alien’s marriage to a US Citizen spouse. 

As applied to US Immigration law, a “waiver” is a formal application to the US government, and an acceptance by the latter, that even though the alien is ordinarily inadmissible into the US based on various grounds (i.e. ill-health, illegal entry, past overstay, past criminal conduct / violations and security/terrorism or other similar grounds, etc.), the government will “overlook” or “forgive” these bars to entry and allow such a person into the US or to continue to live in the US. 

The person applying for such a waiver may already be in the United States; in certain other circumstances, the alien or person may also be OUTSIDE the US while seeking the waiver. The latter is generally the case in two situations: when the person has already been removed or deported from the US, usually when the person was a US Green Card holder and then committed a crime in the US that warranted removal / deportation. The second scenario will encompass those who are neither US Citizens nor Green Card holders, have previously travelled to the US as non-Immigrant Visitors and were deemed to have broken US Immigration laws during such prior visit (s) to the US.

Such persons also likely went through Expedited Removal from the US, which can be quite a harrowing experience.

Persons who previously entered the US “without inspection” (i.e. sneaked across an entry post or border into the US), usually trigger what is known in US Immigration Law language as the “10 year admission bar” (There is also the “3 year admission bar”, which is usually not applicable in certain waiver situations, such as those that require filing an I 601 A waiver application). 

Against this backdrop, the person’s status in the US is such that the government cannot and does not officially acknowledge that he or she even “exists” within the country (i.e. the individual has no social security number, work authorization, etc.) 

With the submission of a waiver application, the person may now apply to the US government for such benefits; if approved, the person gets not just the above benefits but a pathway to US Citizenship (i.e. a Green Card and subsequently, naturalization). These benefits far outweigh those recipients of “deferred action” programs get, such as the original Deferred Action for Childhood Arrivals (DACA), or its later, expanded version.

In March 2013, the previous Obama administration made a significant change to the waiver application process, by initiating what is now known as the Application for Provisional Unlawful Presence Waiver application, on Form I 601 A. Before that time, waiver applicants had to leave the US and apply for the benefit at the US Embassy or consulate in their country of origin, and no matter how long they had lived in the US before being forced to make the trip. 

Aside from the uncertainty that their waiver application might not be approved and thus disallowing them from returning to the US (since they would be subject to the “admission bar” for staying without authorization in the US in the first place), the process also often took a long time to complete, thereby separating even successful waiver applicants from their loved ones (i.e. US Citizen children and spouses), for long periods of time, and often resulting in loss of their erstwhile jobs---or other inconveniences---in the US.

The rollout of the “Provisional Waiver” process changed all that: now, the waiver application could be submitted and adjudicated in the US, with successful applicants then undertaking a quick foreign trip to a US Embassy or Consulate in their country of origin to obtain the necessary documents legitimizing their sojourn in the US. This initiative has cut down the wait time for waiver applications and adjudications considerably.

We have successfully handled Immigration Waiver cases for many of our clients (see our Success Stories)

Another pathway to US Citizenship or permanent residency is initially securing Asylum or Refugee status in the United States.

Asylum status is granted after the alien who seeks it is able to prove to US Immigration authorities that he / she has suffered prior persecution based on the five (5) grounds of race, religion, nationality, membership in a particular social group and / or political opinion, and that he or she fears future persecution based on any or a combination of those 5 grounds. 

Getting Asylum status in the US is not “automatic”: you can be barred from seeking Asylum in the US based on your prior conviction of a crime considered an aggravated felony in the US; you were found to have supported a group designated a terrorist organization by the US government, especially prior to arriving the US; and/or you assisted in the persecution of others. These constitute the “mandatory bars” to seeking Asylum in the US.

“Discretionary bars” to seeking or getting Asylum in the US (meaning you may be able to overcome these particular facts or circumstances) include: you had an opportunity to live permanently in another (or “third country”) before you entered the US; you are applying for asylum more than a year after you arrived the US, absent a valid reason for doing such; and / or you had a prior application for Asylum status denied in US Immigration Court. Once again, these “discretionary bars” to seeking Asylum in the US can be overcome by the alien with a credible, factual showing. 

There is also “defensive” and “affirmative” asylum; the former is sought in Court, before an Immigration Judge. The latter is administered by Officers of the United States Citizenship and Immigration Services (USCIS). 

Unlike Asylum, an alien seeks US Refugee status while he / she is outside the shores of the United States.  Like Asylum, refugee status in the US, when approved, leads to permanent residency and ultimately US citizenship for the alien. 

Our law firm has successfully handled Asylum cases for many clients (see our Success Stories)