March 23, 2009: Criminal Convictions and Deportation: Can Removal be Accelerated?

Criminal Convictions and Deportation: Can Removal be Accelerated?

My brother has 2 felony convictions. He is serving time in jail now and we heard he will be deported after that. He has been in the USA for 17 years with a green card. How long will this procedure take and how fast can we get him out of the USA? We do not want him in jail any longer. We would like to speed up his deportation. What is your advice?
— Anonymous

It is important to realize that while your brother’s criminal actions may have an effect on his immigration status, he cannot avoid the criminal sentence that has been imposed in order to speed up the immigration process. What usually happens is once the criminal sentence has been served, Immigration and Customs Enforcement (ICE) will put an immigration hold on the person, preventing his or her release. Instead, the person will be released into ICE custody and brought to an immigration detention facility. Importantly, not all felony convictions are deportable offenses. Likewise, not all incarcerated immigrants will be subject to an immigration hold.

Even if your brother was convicted of a deportable offense, your brother may be eligible for relief in the form of a waiver of deportation. There are many types of deportation waivers with different burdens of proof. There are many factors that must be considered when determining if someone is eligible for a waiver.

Factors include, but are certainly not limited to, the type of conviction (is it a crime involving moral turpitude or an aggravated felony), the date of the offense in relation to the date of admission as a lawful permanent resident, and whether the person has any qualifying relatives in the United States, such as a United States citizen or lawful permanent resident parent, spouse, and/or child that may suffer hardship is deported. The burdens of proof range from a balancing of the equities test to proving extreme and unusual hardship to a qualifying relative.

It would be wise for your family to seek the advice of an immigration attorney with extensive experience defending immigrants who are in deportation proceedings to determine what, if any, relief is available to your brother in the immigration context.

Michael Shane and Evan Shane, Immigration Attorneys