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DHS Releases Client with Prior Removal Order

Thanks to DFVPA advocacy, DHS recently released from custody a client in a very precarious—although increasingly common—situation. The client had been in the U.S. for over a decade without any criminal history. His entire family, including U.S. citizen children, live in the U.S. Unfortunately, the client had an outstanding order of removal. After reporting to ICE for years without problem, in late 2018, ICE suddenly detained him at a routine check-in. ICE immediately began to process him for deportation. With hours to go before being deported, DFVPA secured an emergency stay of removal from the Board of Immigration Appeals. Although this stopped his deportation, DHS still refused to release the client. DFVPA filed a lawsuit in federal court challenging the detention as illegal. After some negotiations, the government agreed to release the client. He is now free and on a path to potentially gain legal status.

Fortunately, DFVPA was able to help this client. However, many others are not so lucky. Under the current administration, ICE has drastically tightened its detention policies. In the past, DHS had allowed individuals who did not pose a danger to society to continue to live and work in the U.S. under conditions similar to probation or parole. DHS would exercise this discretion if it was in the public interest to do so. For instance, if the non-citizen supported U.S. citizen or permanent resident family members, employed U.S. citizens, provided other skilled services, or faced other humanitarian issues.

Now, any individual with an outstanding order of removal is an “enforcement priority”—regardless of equities. DHS has virtually eliminated all discretion and implemented what is effectively a “deport all” policy. As a result, many individuals with no criminal history and who are the sole providers for U.S. citizen parents, spouses and/or children are being detained for immediate deportation. The result is tearing families and communities apart and causing trauma that will last for generations.

Most non-citizens with outstanding orders of removal do not realize that they may have a path to challenge DHS detention and stay in the U.S. legally. For example, changes in law and life situations can create new opportunities for immigration relief. Procedural defects in prior proceedings, lack of notice, or ineffective assistance of counsel could also open grounds for challenging an old removal order. If an individual has an unexecuted order of removal, it is important to talk to a skilled immigration attorney immediately. Once DHS denies a request for a stay of removal or tells you to go buy plane tickets, the clock is ticking.

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