Immigration Law 101: Immigration Removal Defense

What is removal defense? In the simplest of terms, it refers to a legal process by which immigrants who face deportation or removal from a country seek to delay and prevent this from happening by litigating their case in federal immigration court with the help of legal representation. In most cases, this litigation process is governed by Immigration and Nationality Act § 240 (8 U.S.C. § 1229a), which sets out the rules for removal proceedings. Immigration defense lawyers present arguments as to why the individual should be allowed to remain in the country. This can include arguments related to asylum, cancellation of removal, withholding of removal, and protection under the Convention Against Torture.

In removal defense, many of the same issues arise in the representation of children as in the representation of adults. Common considerations include:

1. Trauma and vulnerability. Individuals facing removal proceedings have likely experienced trauma or may be particularly vulnerable, especially if they have fled persecution, violence, or abuse in their home countries. Attorneys representing immigrants in removal proceedings must be sensitive to these issues and may need to seek specialized support or resources to effectively advocate for their clients.
2. Procedural protections. Individuals in removal proceedings have the right to certain procedural protections, such as the right to a full and fair hearing, the right to present evidence and witnesses, and the right to appeal adverse decisions. Attorneys must ensure that these procedural protections are upheld throughout the legal process.
3. Claims of persecution. When individuals apply for asylum, it is not enough to demonstrate that they will likely be harmed if removed to their country of origin. To succeed on an asylum claim, individuals must also demonstrate that their persecution would occur on account of one of the following five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group. What constitutes a particular social group requires a complex legal analysis, and many asylum cases are denied because individuals cannot demonstrate that their persecution will be based on one of the protected grounds.
4. Appeals. Judicial denials of immigration claims are common and can be appealed to the Board of Immigration Appeals and then, if possible, to the court of appeals for whichever circuit has jurisdiction over the case. Remands are common, and some cases go up and down between trial and appellate levels of court multiple times.

Significantly different legal and practical considerations also arise in removal defense when representing children versus representing adults. Some differences between child and adult representation include the following:

1. Children have different legal capacity than adults. Children may not be able to make legal decisions independently or represent themselves in court proceedings. This means that children facing removal may require a guardian ad litem or appointed counsel to represent their interests. As defending against deportation or removal is a complex and nerve-racking process, especially for children who have fled home countries or are unaccompanied by parents or guardians, the need for universal representation is critical.
2. Children may be eligible for special protections. Children may qualify for special protections under immigration law, such as Special Immigrant Juvenile Status (SIJS) for those who have been abused, abandoned, or neglected; relief under the Trafficking Victims Protection Reauthorization Act (TVPRA) for victims of human trafficking; and asylum based on abuse or persecution. Unaccompanied children are also eligible for a more child-friendly asylum interview process.
3. Adult criminal convictions act as bars to relief. Juvenile convictions are not admissible in immigration court and cannot be used to bar a child from applying for relief from removal. However, adult convictions can act as bars to certain forms of immigration relief. For example, adult applicants are barred from asylum and withholding of removal if they have been convicted of a particularly serious crime. Criminal convictions, including many nonviolent misdemeanors, also frequently act as bars to adjusting status for adults and can jeopardize their eligibility for many types of visas.
4. Children and adults face different detention protocols. Many individuals end up detained in immigration detention centers while their removal proceedings are pending. Unaccompanied minors are placed in the custody of the Office of Refugee Resettlement (ORR) while they await pending reunification. As for adults, U.S. Immigration and Customs Enforcement (ICE) may detain any noncitizen over the age of 18 years while their removal proceedings are pending. Certain criminal convictions can even result in mandatory detention of certain individuals under Immigration and Nationality Act § 236(c) (8 U.S.C. § 1226). If eligible, detained immigrants can request a bond hearing to determine if they can be released into the community while their removal proceedings are ongoing. However, not all individuals have a right to a bond hearing, even if detention is prolonged, and many convictions, even if they are nonviolent misdemeanors, can bar release on bond.
5. Adults with serious mental illness may be entitled to safeguards. Thanks to the permanent injunction resulting from the class action Franco-Gonzalez v. Holder, 767 F. Supp. 2d 1034 (C.D. Cal. 2010), detained immigrants in the Ninth Circuit who are found by the court to have serious mental disorders or illnesses are guaranteed certain procedural safeguards in immigration court. The quintessential safeguard afforded to Franco class members is the appointment of a qualified representative (usually an attorney) to represent them in their removal proceedings.

Overall, while the goal of removal defense is to prevent or delay deportation for both children and adults, the specific legal strategies and considerations involved can vary significantly depending on the age and circumstances of the individual client. Removal defense is complex and often requires the expertise of immigration law attorneys or accredited representatives.