If you are facing deportation or removal from the United States and have a hearing in Immigration Court in Boston or elsewhere, your fate is in the hands of an Immigration Judge who will weigh the evidence and reach a decision. Immigration lawyers refer to this process as the Court’s or the Judge’s discretion.
People often underestimate the power of an Immigration Judge’s discretion. So I’d like to give you three specific examples of how Immigration Judges have the discretion to decide deportation cases:
#1: “Why did the Immigration Judge deny my case? All of my criminal cases were dismissed!” Imagine that you are married to a U.S. citizen and are applying for a green card. You have a hearing before an Immigration Judge for your I-485 application to adjust your status to permanent residency. You have been arrested several times but all of your criminal cases were dismissed. Even though your criminal charges didn’t result in a conviction, it would be a mistake to assume that the Immigration Judge will automatically approve your I-485 just because your criminal cases did not result in a conviction. You are not necessarily entitled to a green card. The Immigration Judge has discretion to approve or deny your green card application. In making that decision, the Immigration Judge will want to know more about your criminal cases even if you were not convicted. The Judge will weigh the evidence and reach a decision in their discretion. And if you don’t convince the Immigration Judge that you deserve to become a permanent resident, you are going to lose.
#2: Immigration Bond. If Immigration and Customs Enforcement (“ICE”) arrests you and puts you in jail, you have a right to a bond hearing where you may ask an Immigration Judge to release you on an immigration bond. The immigration regulations require the Immigration Judge to make three important discretionary decisions. First, as a threshold matter, the Judge must decide whether you are a danger to the community. Unless this decision is in your favor, you will not be released on bond. Second, if the Immigration Judge believes that you are not a danger to the community, the Immigration Judge will then decide whether you are likely to return to court if released. And, third, if the Immigration Judge decides that you are not a danger to the community and that you are likely to return to Immigration Court for future hearings, the Judge will determine the cost of the bond. The important point is that these three key decisions–dangerousness, flight-risk, and cost of bond–are all entirely within the Immigration Judge’s discretion to determine as he or she sees fit.
#3 Asylum: If you are applying for asylum in Immigration Court, you must convince an Immigration Judge that you have suffered past persecution or have a well-founded fear of returning to your home country. To prove your claim, you may testify and present evidence. An Immigration Judge has the discretion to decide whether you are telling the truth and whether your case deserves to be approved or denied.
If you lose in Immigration Court because the Immigration Judge makes a discretionary decision that you dislike or disagree with, you do have the right to appeal to the Board of Immigration Appeals. But no matter how much you disagree with the outcome of your case, it is extremely difficult to successfully challenge an Immigration Judge’s discretionary decision. Appealing the denial of your bond is particularly difficult because you will be in jail while the appeal is pending. The likely result of your appeal could merely prolong your time in jail.
In short, winning or losing in Immigration Court usually boils down to an Immigration Judge’s discretionary decision. And my job as a deportation defense attorney is to persuade the Immigration Judge to make a discretionary decision in your favor.
If you have questions about Boston Immigration Court, bonds, hearing, trial strategy or other issues; or if you need an attorney to represent you, please call me in my Boston office at (617) 722-0005 to schedule an immigration consultation.