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Introduction To Representing Noncitizens In Removal Proceedings: Part 5 of 5

by Michael J. Boyle

If no relief is available, does your client want to be removed quickly?

As discussed above, many clients cannot avoid removal. Others have limited, unattractive options: long-shot challenges to removability or appeals of denials of relief applications that will proceed over a period of months while the client remains in DHS detention. It is important to share your best judgment with the client about his chances so that he can make an informed choice about how to proceed. It is tempting to want to make this decision for your clients, and it is common for his relatives to feel that it is their role to make it for him. A good attorney will lay the options out for the client as clearly as possible, as early in the process as possible. This review should include discussion of the costs and timing of each level of appeals. Based on Attorney General Ashcroft's post-9/11 BIA reforms, even meritorious appeals in cases involving noncitizens with convictions will likely require federal court review to achieve a successful result. Understating the time and expense involved in going this route is a real disservice to clients.

If a client decides that his case is not worth fighting, be ready to concede the allegations and charges at the master calendar hearing. Doing so will help keep the client moving smoothly along the path to removal. Reserving appeal, or taking an appeal and then withdrawing it, will slow down the process. Whether you bargain for it or not, your client will expect you to try and iron out kinks in the removal process. If you have clients from countries like Jamaica, Guyana, the Dominican Republic or China that are slow to repatriate their nationals, you may want to gather information on consular officials who your client or his relatives can contact to ensure that travel document processing proceeds at a reasonable pace. Currently, a reasonable pace is several weeks to a few months for many countries. "Slow" countries could take four to six months or more to arrange removal. Furthermore, the DHS frequently delays taking custody of a noncitizens in state custody who have been voted to parole and reached their parole dates. At times the noncitizen will be stuck waiting and have to serve his entire sentence before the DHS will pick him up. A noncitizen in DHS custody cannot sue the government to remove him or her more quickly, but if delays in the process reach more than six months the noncitizen can file a habeas action seeking an order for mandating his or her release. Filing such an action often inspires the DHS and consulate to do their job.

Finally, you should consider documenting your client's choice not to proceed with appeals or relief applications. When a noncitizen lingers in jail waiting to be removed and thinking of all he is losing in leaving America, he may be tempted to change his mind about being removed or other matters of case strategy after the short time limits on filing an appeal have past. A brief confirmation or disengagement letter can limit the consequences to you of a client's after-the-fact dissatisfaction with your representation.

Next week: All Parts Compiled

About The Author

Michael J. Boyle practices immigration law with the Law Offices of Michael Boyle, a four-attorney immigration law firm in North Haven, CT. Mr. Boyle is also Chair of the Connecticut chapter of the American Immigration Lawyers Association. He is also Staff Attorney for the unions at Yale University and advises the immigration committee of the Hotel Employees and Restaurant Employees International Union. He is a graduate of Yale, the University of London School of Oriental and African Studies, and the University of Connecticut School of Law. Michael Boyle may be contacted at:

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.