Deportation Defense in Georgia: Know Your Rights in Removal Proceedings

Deportation Defense in Georgia: Know Your Rights in Removal Proceedings

Receiving a Notice to Appear (NTA) from the Department of Homeland Security (DHS) is one of the most stressful experiences an immigrant can face. Removal proceedings, commonly known as deportation proceedings, are the formal process by which the U.S. government seeks to remove a noncitizen from the United States. Under INA §240, 8 U.S.C. §1229a, an immigration judge presides over these proceedings in immigration court, which is part of the Executive Office for Immigration Review (EOIR) within the U.S. Department of Justice. At J. Lee & Associates Law Group in Norcross, Georgia, our immigration defense attorneys represent individuals facing removal before the Atlanta Immigration Court and courts throughout the Southeast.

How Removal Proceedings Begin

Removal proceedings are initiated when DHS files a Notice to Appear (NTA) with the immigration court and serves it on the respondent (the person in proceedings). The NTA, governed by INA §239, 8 U.S.C. §1229, lists the factual allegations and charges of removability against the respondent. Common grounds for removal include:

• Inadmissibility under INA §212(a): Grounds that would have made the person ineligible for admission, including fraud or misrepresentation, certain criminal convictions, unlawful presence, public charge, and health-related grounds.
• Deportability under INA §237(a): Grounds for deporting persons already admitted, including status violations (overstaying a visa, unauthorized employment), certain criminal convictions (aggravated felonies under INA §101(a)(43), crimes involving moral turpitude, controlled substance offenses, firearms offenses, domestic violence), and security-related grounds.
• Arriving alien processing: Individuals encountered at or near the border or a port of entry who are placed directly into removal proceedings.

The Immigration Court Process in Georgia

The Atlanta Immigration Court, located at 180 Ted Turner Drive SW, handles a high volume of cases for respondents residing in Georgia and surrounding states. Understanding the court process is critical for mounting an effective defense.

Master Calendar Hearings

The first hearing is typically a master calendar hearing, which serves as a preliminary proceeding. At this hearing, the immigration judge reviews the NTA charges, determines whether the respondent admits or denies the factual allegations, identifies potential forms of relief from removal, and sets deadlines for filing applications. It is strongly advisable to have an attorney present at this hearing, as decisions made here can significantly impact the case outcome. Under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), ineffective assistance of counsel in immigration proceedings can be grounds for reopening a case, underscoring the importance of competent representation from the outset.

Individual Merits Hearings

If the respondent is eligible for relief from removal, the case proceeds to an individual merits hearing. This is a full evidentiary hearing where the respondent presents testimony, documentary evidence, and witness testimony to support their claim for relief. The DHS trial attorney presents the government's case. The immigration judge evaluates the evidence and issues a decision, either granting relief or ordering removal.

Forms of Relief from Removal

Even after being placed in removal proceedings, respondents may be eligible for several forms of relief that could allow them to remain in the United States legally. Each form of relief has specific eligibility requirements and evidentiary standards.

Asylum

Under INA §208, 8 U.S.C. §1158, individuals who fear persecution in their home country on account of race, religion, nationality, membership in a particular social group, or political opinion may apply for asylum. Defensive asylum applications (filed in immigration court) are not subject to the one-year filing deadline if the applicant demonstrates changed or extraordinary circumstances. The applicant bears the burden of proving eligibility, including a well-founded fear of persecution on a protected ground. The standard was clarified in Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), which held that an applicant must show a reasonable possibility of persecution.

Withholding of Removal

Under INA §241(b)(3), 8 U.S.C. §1231(b)(3), withholding of removal prohibits the government from removing an individual to a country where the individual's life or freedom would be threatened on account of a protected ground. The standard for withholding is higher than asylum; the applicant must demonstrate a "clear probability" of persecution, meaning it is "more likely than not" that they would face persecution. Unlike asylum, withholding of removal has no filing deadline and cannot be barred by certain criminal convictions that would bar asylum, though the aggravated felony bar under INA §241(b)(3)(B) does apply. Withholding does not provide a path to permanent residence; it only prevents removal to the specific country of risk.

Convention Against Torture (CAT) Protection

Under 8 C.F.R. §208.16(c) and §208.18, individuals may seek protection under the United Nations Convention Against Torture if they can demonstrate that it is "more likely than not" that they would be tortured by or with the acquiescence of a government official upon return to their country. CAT protection is available regardless of criminal history, making it a critical form of relief for respondents with serious criminal convictions who are barred from asylum and withholding.

Cancellation of Removal

There are two forms of cancellation of removal:

• Cancellation for Lawful Permanent Residents (LPRs): Under INA §240A(a), an LPR who has been a permanent resident for at least five years, has resided continuously in the United States for at least seven years after admission in any status, and has not been convicted of an aggravated felony may apply for cancellation. If granted, the removal order is cancelled and LPR status is restored.
• Cancellation for Non-LPRs ("10-Year Cancellation"): Under INA §240A(b), a non-permanent resident who has been physically present in the United States for at least 10 continuous years, has been a person of good moral character during that period, has not been convicted of certain criminal offenses, and can demonstrate that removal would result in "exceptional and extremely unusual hardship" to a qualifying relative (U.S. citizen or LPR spouse, parent, or child) may apply for cancellation. The hardship standard was addressed in Matter of Recinas, 23 I&N Dec. 467 (BIA 2002), which clarified the level of hardship required.

Voluntary Departure

Under INA §240B, 8 U.S.C. §1229c, a respondent may request voluntary departure in lieu of a formal removal order. Voluntary departure allows the individual to leave the United States at their own expense within a specified time period (up to 120 days if granted before the conclusion of proceedings, or up to 60 days if granted at the conclusion). The benefit of voluntary departure is that it avoids the bars to reentry that come with a formal removal order, including the 5-year (INA §212(a)(9)(A)(i)) or 10-year (INA §212(a)(9)(A)(ii)) bars to admission.

Adjustment of Status

In some cases, a respondent in removal proceedings may be eligible to apply for adjustment of status to lawful permanent resident under INA §245. This requires an immediately available immigrant visa (current priority date or immediate relative status), physical presence in the United States, and admissibility (or eligibility for a waiver of inadmissibility). Immigration judges have jurisdiction to adjudicate adjustment of status applications in removal proceedings under 8 C.F.R. §1245.2(a)(1).

Waivers of Inadmissibility

Respondents who are removable on inadmissibility grounds may qualify for waivers, including:

• INA §212(h) waiver: For certain criminal grounds of inadmissibility, available to applicants who can demonstrate extreme hardship to a qualifying U.S. citizen or LPR relative.
• INA §212(i) waiver: For fraud or misrepresentation, requiring a showing of extreme hardship to a qualifying relative.
• INA §212(a)(9)(B)(v) waiver (I-212): For applicants barred due to unlawful presence, requiring extreme hardship to a qualifying relative.

Detention and Bond

Many individuals in removal proceedings are detained by Immigration and Customs Enforcement (ICE). In Georgia, ICE detainees are commonly held at the Stewart Detention Center in Lumpkin, Georgia, the Irwin County Detention Center, or other contract facilities. Under INA §236(a), a detained individual who is not subject to mandatory detention may request a bond hearing before an immigration judge. The immigration judge sets bond at a minimum of $1,500, per INA §236(a)(2)(A), based on whether the respondent is a flight risk or danger to the community. In Matter of Guerra, 24 I&N Dec. 37 (BIA 2006), the BIA held that the respondent bears the burden of proving that they are not a flight risk or danger. Individuals subject to mandatory detention under INA §236(c), including those with certain criminal convictions, may not be released on bond, though constitutional challenges to prolonged mandatory detention have been raised under Jennings v. Rodriguez, 583 U.S. 281 (2018).

Appeals to the Board of Immigration Appeals (BIA)

If the immigration judge issues an unfavorable decision, the respondent may appeal to the Board of Immigration Appeals (BIA) by filing a Notice of Appeal (Form EOIR-26) within 30 days of the decision, as required under 8 C.F.R. §1003.38. The BIA reviews the immigration judge's decision for errors of law and clearly erroneous findings of fact. If the BIA denies the appeal, the respondent may file a petition for review with the U.S. Court of Appeals for the Eleventh Circuit within 30 days, per INA §242(b)(1), 8 U.S.C. §1252(b)(1).

Your Rights in Removal Proceedings

Individuals in removal proceedings have important constitutional and statutory rights:

• Right to counsel: Under INA §240(b)(4), respondents have the right to be represented by an attorney at no expense to the government. Securing qualified legal representation significantly improves case outcomes.
• Right to present evidence: Respondents may present testimony, documents, and witnesses in support of their case.
• Right to examine evidence: Respondents have the right to examine and object to evidence presented by the government.
• Right to appeal: Respondents may appeal unfavorable decisions to the BIA and, subsequently, to the federal circuit court.
• Right to an interpreter: The immigration court must provide an interpreter for respondents who do not speak English fluently.

Why Experienced Legal Representation Matters

Removal proceedings are adversarial; the government is represented by a trained DHS trial attorney. Studies consistently show that represented respondents are significantly more likely to succeed in their cases than those who appear pro se. An experienced immigration defense attorney identifies all possible forms of relief, prepares comprehensive applications, presents persuasive evidence, and advocates effectively before the immigration judge.

J. Lee & Associates Law Group represents individuals in removal proceedings before the Atlanta Immigration Court and throughout Georgia. Our attorneys have experience with asylum, cancellation of removal, withholding, CAT claims, bond hearings, and appeals to the BIA and Eleventh Circuit. If you or a loved one has received a Notice to Appear or is detained by ICE, call (770) 609-9396 immediately. Time-sensitive deadlines apply in removal cases, and early intervention is critical.

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