Tri-Valley University Raid Generates Fear of Removal04 Feb 2011
The raid of Tri-Valley University (TVU) continues to send shockwaves through the immigrant community. Many former students fear that they will be removed (formerly referred to as deported) from the United States. Concerns about removal and clarifications of some misunderstandings are addressed here for the benefit of MurthyDotCom and MurthyBulletin readers.
ICE Cannot Just Put One on a Plane
One of the greatest fears and misunderstandings of many foreign nationals, including former TVU students, is that they may simply be taken away and put onto a plane back to their home countries. This is not how the process works. It usually begins with U.S. Immigration and Customs Enforcement (ICE) issuing a Notice to Appear (NTA) against the foreign national. Removal from the United States in this type of situation requires a series of legal procedures, including at least one hearing before an Immigration Judge. There are severe scheduling backlogs at most U.S. immigration courts. Thus, in general, it can take several months or longer for the first hearing date.
Rarely Does ICE Come Knocking in the Middle of the Night
Another common fear among foreign nationals is that ICE officers will come banging on their doors in the middle of the night to take them away. While ICE officers can come to the homes of some foreign nationals to serve the required NTA in immigration proceedings, and they can detain individuals, they generally do not start removal proceedings in this manner.
Removal Process: Starts with NTA
As mentioned, the process of removing individuals from the United States begins with the NTA. This document contains the allegations against the individual and the charge under which ICE is attempting to have the individual removed. The claimed basis for removal of the TVU students, in the NTAs we have seen, is a failure to maintain nonimmigrant status.
NTAs do not have to be served by ICE agents in person. Thus, ICE does not have to come to one’s door. In some instances, individuals can be requested to go in for questioning, and receive NTAs then.
Warning: Do Not Try to Hide from NTA
As stated, the NTA does not have to be served upon (hand delivered to) an individual. Rules allow for mailing to the last-known address, as well as service on one’s lawyer. Foreign nationals are required to keep their address information with the U.S. Citizenship and Immigration Services (USCIS) updated at all times. If the NTA is served to an outdated address, the removal proceedings will still go forward without the individual present. Normally, if one does not appear for his/her scheduled hearing, the judge will issue the removal order. In most cases, this leaves very limited options, if any. The removal order will result in a minimum five-year ban on reentry to the United States.
Detention: Not Mandatory
Another upsetting scenario is the prospect of being locked up or, in immigration parlance, “detained.” The Murthy Law Firm has received reports of former TVU students who have been issued NTAs and placed in detention facilities. Depending upon the basis for the NTA and other factors, however, it is often possible to obtain release pending the immigration hearing. This typically requires the posting of a bond to give one the incentive to appear for the hearing. The amount of such bonds can vary considerably. If ICE sets a bond that is too high, or denies bond entirely, one has the right to request review of that decision by an Immigration Judge. This bond review process is handled on an expedited basis by the Immigration Court and normally occurs within a few days. In some cases, ICE uses electronic monitoring devices locked around one’s ankle, which alerts authorities of a detainee’s whereabouts, as an alternative to detention.
Do NOT Leave After Issuance of NTA
It is important to face and resolve the situation within the United States, if the NTA is issued. If, instead, one departs the U.S. without appearing in court, an order of removal will be entered. This creates a bar to reentry to the United States for at least five years, depending upon the removal basis.
Contact an Immigration Lawyer if Contacted by ICE
If contacted by ICE, in any manner, it is important to seek the assistance of an immigration lawyer immediately. ICE is not treating all TVU students in the same fashion, and lawyers can potentially help facilitate obtaining the most favorable option. They can also provide guidance and possible options to help one avoid making a bad situation worse.
To date, the NTAs that we have seen issued against TVU students have been based on status violations. Since there are allegations of fraud against the school, however, it is important to understand the questions one could be asked by ICE and the implications of one’s responses. In such situations, the presence of a lawyer to advise you is recommended.
Leaving the U.S. Before or After NTA Issuance
If a TVU student wants to just leave the United States BEFORE s/he is contacted by ICE, it is possible to do so. There is no need for any permission from the USCIS, ICE, or an Immigration Judge. There are some precautions to take into consideration to facilitate a later return to the U.S. It is important to retain proof of the date of one’s departure. Instances in which foreign nationals have been served with NTAs after their departure come to our attention. As mentioned, it is not necessary for ICE to hand the papers to the individual. Mailing to the last-known address or to the attorney of record generally is sufficient. If this occurs, the removal proceeding could go forward without the foreign national, and an order of removal could be entered. This would have to be resolved (with the proof of departure prior to service of the NTA) in order to return to the United States in the future. An attorney could assist in transmitting notification of intended and actual departure to try to avoid issuance of an NTA after departure. If an NTA is issued despite one’s departure, and s/he is aware of it, an attorney could respond with the proof of departure in order to resolve this problem.
AFTER an NTA has been issued, it is necessary to appear in immigration court. If one just wants to leave the United States, it is possible to have a lawyer request voluntary departure on one’s behalf before an Immigration Judge. (It is not legally necessary to have a lawyer, but qualified legal representation is certainly recommended when so much is at stake.)
Voluntary departure is the privilege of leaving the United States on one’s own, rather than being removed by the government. The Immigration Judge can grant this request, if certain requirements are met. The foreign national is given a set amount of time in which to leave the country. If s/he fails to do so for any reason, the voluntary departure order is converted to a removal order. An individual who receives voluntary departure is given instructions on how to provide notification and documentation of compliance with the order once s/he arrives in the home country.
Other Helpful Information: How to Find Missing Individuals on ICE WebSite
If one has friends or family members who may have been detained by ICE, locating them may be possible using the ICE detainee locator on the ICE WebSite. It should be noted that a foreign student generally would not have an “alien number,” or A#, unless and until s/he is placed in removal proceedings. Thus, it would be necessary to search using other biographical information.
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