By Attorney Anda C. Kwong & Nancy E. Miller
When the term “illegal immigrant” is used, some assume that the discussion is about someone who entered the United States without presenting themselves for inspection at the air, sea or land border. However, “illegal immigrant” can also apply to one who entered legally but whose status has expired. In fact, more people become “illegal immigrants” by overstaying visas than by entering without documentation.
Overstay means that a noncitizen violated the terms of the visa issued by remaining in the United States beyond the time permitted. One who overstays her visa is out of status, meaning, she is now here illegally. While overstaying a single day past the expiration of the visa is unlawful, overstaying becomes even more problematic when the noncitizen stays past 180 days but under one year because she then triggers a bar from returning to the United States for three years when she exits the country. This unlawful presence penalty increases to a ten-year bar when she leaves after overstaying by more than one year.
Some immigration benefits require the alien to leave the United States to complete processing through the U.S. Consulate in their home country but because they have been here illegally, they invoke the bar as soon as they depart in order to pursue the benefit they seek. A waiver of the bar is possible if one can prove that their U.S. citizen or lawful permanent resident parent or spouse - NOT child - would suffer extreme hardship if they are not able to return.
With the administration’s expressed intent to step up enforcement to cut down on the violation, there will be a greater focus on those who have overstayed their visas. While fear of being arrested and deported is a reasonable and understandable response, noncitizens should remember that they do have due process rights. And even once one has been taken into custody, he may apply for immigration benefits if he is eligible for them.
A noncitizen who is taken into custody by the Department of Homeland Security (DHS) can expect to be placed in removal proceedings by means of a Notice to Appear (NTA). The notice will set out the reasons why DHS believes the immigrant is ineligible to remain in the United States. Either it or a second document called a Notice of Hearing will set forth when and where the immigrant’s hearing is to be held. Failure to appear at a hearing in removal court can result in an in-absentia removal order. That means that the alien is ordered removed without ever having appeared in court. Exceptional circumstances beyond the alien’s control are the only acceptable reason for failure to appear. And, unless the immigration court judge knows of those circumstances in advance, she will issue the in-absentia removal order. In order to then have her day in court, the immigrant will have to timely file a motion to reopen the proceedings. There is no guarantee that the motion will be granted. It is up to the immigrant to prove that her reason for not appearing meets the legal requirements.
In court, the United States government (DHS) is represented by an attorney from the Office of the Chief Counsel (OCC). The noncitizen has the right to be represented by an attorney at no cost to the government. If he decides to represent himself, he is expected to comply with the appropriate legal and procedural requirements. In court, the immigrant will be required to plead to the facts and charges contained in the NTA that assert why the alien should be removed. Pleading means either admitting that they are true and legally appropriate or denying because they are factually inaccurate or legally wrong.
If the judge sustains the charges (finds they are factually true and legally accurate), the alien will have the opportunity to apply for any relief for which he may be eligible. He must file the appropriate applications and supporting evidence and present oral testimony to support the applications. It is the alien’s burden to prove eligibility. As is clear, this is a complicated and complex process.
One should exercise his or her due process rights. One should also apply for all benefits for which they are eligible. But in order to do so, one must know what they are. Therefore, anyone who is not in status should consult with an experienced and knowledgeable immigration lawyer to discuss their options.