This chapter explains how to get started on your immigration case.
For a PDF of this chapter, see pages 4-5 of the PDF version of this guide.
You will not see an Immigration Judge for at least 10 days after you receive a Notice to Appear from the government. 8 U.S.C. §1229(b).
Note
The library in each prison should have volume 8 of the United States Code, known as 8 U.S.C. This is where you will find the law on immigration.
An Immigration Judge will decide your case. The judge is supposed to be fair. If you have criminal charges, the Immigration Judge will probably know about them. It will not help your case to deny that you have charges or a conviction if you do.
Yes. You have the right to a lawyer, but the government will not pay for that lawyer. 8 U.S.C. §1362. You can represent yourself if you cannot get a lawyer. If you want a lawyer, you will have to find and pay for a lawyer or you can try to get a free lawyer. It is very hard to find a free lawyer, because there are not very many lawyers who provide free services and there are many, many people who want one. Also, if you are not competent to represent yourself, and you do not have a lawyer, you can ask the Immigration Judge to appoint a lawyer for you. You will have to prove that you have a disability that prevents you from representing yourself.
No, but some people can request an international transfer. See Chapter 15: Requesting an International Transfer to Another Country. Otherwise, if you are still in prison, several things may happen to you:
(1) Detainer. ICE may put a detainer on you so that when you finish your sentence you will likely be moved to ICE custody, perhaps in another jail, for your immigration case.
(2) Immigration Hearing in Prison. Immigration may start a deportation case against you while you are still in prison. You have the same rights at that hearing as you have in Immigration Court. The hearing may happen in prison or through a video screen where the judge is in the court and you are still in prison. You and the judge will be able to see and hear each other through the screen. It is also possible that ICE will try to have the hearing over the telephone without the screen. You would only be able to hear, but not see, the judge. You can ask for a hearing in Immigration Court that is not over the telephone. You can also ask for a hearing in court that is not over the video screen, but you have to explain how that causes problems for you in presenting your case. It is very, very 4 unusual for anyone in ICE custody to be brough to see the Immigration Judge in person.
(3) No Immigration Hearing at All. The government may try to deport you from the U.S. without any hearing at all. This can happen to people who are not lawful permanent residents (who never had a green card) with an aggravated felony conviction. 8 U.S.C. §1228(b). An aggravated felony includes many crimes, such as drug trafficking, some crimes of violence, some theft crimes, and murder. See Chapter 5: Grounds Of Deportation For Criminal Convictions. To do this, the government must give you a special notice showing that your criminal conviction is an aggravated felony and that you are not a lawful permanent resident. Answer a notice in writing from ICE and let ICE know if:
- you have your green card (send proof, such as a copy); or
- your conviction is not an aggravated felony; or
- your conviction is on appeal; or
- you fear harm if forced to go back to your country. If you fear harm, check the box to apply for withholding of removal or protection under the Torture Convention.
Yes. For certain crimes and other reasons the government can deport anyone except a U.S. citizen. This manual explains defenses to deportation. See Chapter 5: Grounds Of Deportation For Criminal Convictions and Chapter 6: Preventing Immigration from Deporting you from the U.S..
If you are afraid to go back, you may ask the Immigration Judge for asylum and withholding of removal. You must clearly state to the judge and to ICE that you are afraid of returning to your home country. The harm must be because of your political opinion, race, religion, nationality or membership in a particular group. If you fear torture by the government for any reason, you can ask for protection under the Torture Convention, and you do not need to show that the harm is because of one of these five reasons. If you win your case, ICE cannot deport you to the country where you fear harm.
Yes. The government can deport you for certain reasons even if you are married to a U.S. citizen or have children born here. However, you may have some defenses to deportation, and your relationship to these citizens will help in your case. See Chapter 5: Grounds Of Deportation For Criminal Convictions and Chapter 6: Preventing Immigration from Deporting you from the U.S. for possible defenses to deportation.
Yes. You may be a citizen if your parent or grandparent was a U.S. citizen. You also may be a citizen if you were born in another country but one parent naturalized when you were under 18, and were living in the U.S. as a lawful permanent resident. A citizen is also a person whose parents are unknown and who was found in the U.S. while under age 5. If you think you might be a citizen, tell the Immigration Judge. See Chapter 6: Preventing Immigration from Deporting you from the U.S.
You will not see an Immigration Judge for at least 10 days after you receive a Notice to Appear from the government. 8 U.S.C. §1229(b).
Note
The library in each prison should have volume 8 of the United States Code, known as 8 U.S.C. This is where you will find the law on immigration.
An Immigration Judge will decide your case. The judge is supposed to be fair. If you have criminal charges, the Immigration Judge will probably know about them. It will not help your case to deny that you have charges or a conviction if you do.
Yes. You have the right to a lawyer, but the government will not pay for that lawyer. 8 U.S.C. §1362. You can represent yourself if you cannot get a lawyer. If you want a lawyer, you will have to find and pay for a lawyer or you can try to get a free lawyer. It is very hard to find a free lawyer, because there are not very many lawyers who provide free services and there are many, many people who want one. Also, if you are not competent to represent yourself, and you do not have a lawyer, you can ask the Immigration Judge to appoint a lawyer for you. You will have to prove that you have a disability that prevents you from representing yourself.
No, but some people can request an international transfer. See Chapter 15: Requesting an International Transfer to Another Country. Otherwise, if you are still in prison, several things may happen to you:
(1) Detainer. ICE may put a detainer on you so that when you finish your sentence you will likely be moved to ICE custody, perhaps in another jail, for your immigration case.
(2) Immigration Hearing in Prison. Immigration may start a deportation case against you while you are still in prison. You have the same rights at that hearing as you have in Immigration Court. The hearing may happen in prison or through a video screen where the judge is in the court and you are still in prison. You and the judge will be able to see and hear each other through the screen. It is also possible that ICE will try to have the hearing over the telephone without the screen. You would only be able to hear, but not see, the judge. You can ask for a hearing in Immigration Court that is not over the telephone. You can also ask for a hearing in court that is not over the video screen, but you have to explain how that causes problems for you in presenting your case. It is very, very 4 unusual for anyone in ICE custody to be brough to see the Immigration Judge in person.
(3) No Immigration Hearing at All. The government may try to deport you from the U.S. without any hearing at all. This can happen to people who are not lawful permanent residents (who never had a green card) with an aggravated felony conviction. 8 U.S.C. §1228(b). An aggravated felony includes many crimes, such as drug trafficking, some crimes of violence, some theft crimes, and murder. See Chapter 5: Grounds Of Deportation For Criminal Convictions. To do this, the government must give you a special notice showing that your criminal conviction is an aggravated felony and that you are not a lawful permanent resident. Answer a notice in writing from ICE and let ICE know if:
- you have your green card (send proof, such as a copy); or
- your conviction is not an aggravated felony; or
- your conviction is on appeal; or
- you fear harm if forced to go back to your country. If you fear harm, check the box to apply for withholding of removal or protection under the Torture Convention.
Yes. For certain crimes and other reasons the government can deport anyone except a U.S. citizen. This manual explains defenses to deportation. See Chapter 5: Grounds Of Deportation For Criminal Convictions and Chapter 6: Preventing Immigration from Deporting you from the U.S..
If you are afraid to go back, you may ask the Immigration Judge for asylum and withholding of removal. You must clearly state to the judge and to ICE that you are afraid of returning to your home country. The harm must be because of your political opinion, race, religion, nationality or membership in a particular group. If you fear torture by the government for any reason, you can ask for protection under the Torture Convention, and you do not need to show that the harm is because of one of these five reasons. If you win your case, ICE cannot deport you to the country where you fear harm.
Yes. The government can deport you for certain reasons even if you are married to a U.S. citizen or have children born here. However, you may have some defenses to deportation, and your relationship to these citizens will help in your case. See Chapter 5: Grounds Of Deportation For Criminal Convictions and Chapter 6: Preventing Immigration from Deporting you from the U.S. for possible defenses to deportation.
Yes. You may be a citizen if your parent or grandparent was a U.S. citizen. You also may be a citizen if you were born in another country but one parent naturalized when you were under 18, and were living in the U.S. as a lawful permanent resident. A citizen is also a person whose parents are unknown and who was found in the U.S. while under age 5. If you think you might be a citizen, tell the Immigration Judge. See Chapter 6: Preventing Immigration from Deporting you from the U.S.