Legal Columns


[Entry without Inspection] New Deportation Threat under Trump and Possible Defenses to Deportation of Undocumented Immigrants 08/04/2017

In the early morning of Saturday last month, 2-3 federal immigration agents raided a two-story brick house in Queens, New York. Their target was a 36-year-old married man who came to the U.S. through the Mexican border in 2005 from China and was then granted a lawful permanent resident status based on asylum through a fraudulent broker who was recently arrested by FBI. The incident would have seemed like a standard deportation case, except for a key detail unreported to the media: The agents did not find him through traditional detective work. They found him using a cell-site simulator, a powerful surveillance device developed for the global war on terror.

Five days after his election last year, President Donald Trump announced his plan to quickly deport up to 3 million undocumented immigrants focusing on people that are “criminal, gang members, drug dealers.” Since February until June, 13,085 undocumented immigrants per month have been arrested by the Trump government, which is up more than 33% from the same period in the Obama administration.

How would he do it? How would he deport more people, more quickly, than any of his recent predecessors? The answer is the U.S. government’s high-tech tools including surveillance system and biometrics data originally developed to find terrorists. In addition, Trump’s immigration policies substantially differ from those of Obama. President Trump has no tolerance for undocumented aliens, especially those engaged in serious crimes or illegally present in the U.S. To strengthen his enforcement efforts, he has already taken steps including hiring more immigration agents up to 10,000 and judges up to 125 within 2 years.

What happens when an undocumented immigrant is arrested by the federal immigration? Are they detained and deported from this country right away without any mercy? Nope. Except for those who have an outstanding removal order and have remained in the U.S. or illegally entered the U.S. through the border recently, most of them are placed in removal proceedings before the immigration judge, which take at least 2-3 years due to the current case backlog. Once you are placed in removal proceedings after the issuance of a charging document, so called “Notice to Appear,” you have the right to a counsel who will fight against the government on your behalf.

During the entire removal proceedings, the attorney’s role is to first analyze your immigration history and eligibility for relief from removal, and then to defend you against the government. At the first hearing, your attorney will admit or deny factual allegations and concede or contest any charges of removability. If you do not concede charges of removability, it is the government attorney’s burden to present enough evidence to show that you are actually removable from the U.S. Sometimes, the government can charge you with the wrong reasons, or it is also possible that the government attorney will be unable to present evidence to show that you are removable. If the government fails to meet its burden, your attorney can ask the immigration judge to dismiss the case to close the proceedings.

Even if the government attorney meets its burden and/or the judge decides that you are removable as originally charged, you can still submit applications for relief from removal after the judge has decided that you are removable in the first place. There are several types of relief under the U.S. immigration law: for example, (1) Adjustment of Status (if you have a qualifying U.S. citizen/permanent resident family members or an employer willing to sponsor your visa); (2) Asylum; (3) Withholding of removal; (4)  Protection under the Convention Against Torture (CAT); (5) Cancellation of Removal (even if you do not have a qualifying family members or willing employer); and (6) various waiver applications for inadmissibility or removability grounds such as overstay, fraud, or criminal records.

If none of the above relief applies to you, you can consider the following options: (1) Voluntary Departure (which will allow you to return to the U.S. after departure, without staining your immigration record, much earlier than being deported on a removal order); (2) Deferred Action (which are usually granted for certain young immigrants on a case-by-case basis); or (3) Administrative Closure based on Prosecutorial Discretion (which will temporarily close your removal proceedings and you may be able to apply for work authorization).

How will the man in the intro paragraph be rescued from deportation? As long as he did not knowingly and purposefully misrepresent any material fact in his previous asylum application, his attorney may be able to ask the judge first to dismiss the case because the burden/responsibility of proving the fraud is on the government attorney, which is not always easy. Even if the judge sustains the removability charge based on fraud, he may be eligible for some reliefs, for example, cancellation of removal or adjustment of status with a fraud waiver application assuming that his wife is a U.S. citizen or permanent resident.

The U.S. immigration law and system is incredibly complex and difficult to navigate alone. It is only with experienced and competent legal representation that will ensure eligible individuals to have the opportunity to remain safely in the United States. Song Law Firm’s immigration team composed of experienced and knowledgeable attorneys is dedicated to protecting your legal rights. If you have any further questions regarding deportation defense process including release from immigration detention, please contact our immigration team via email at