Let’s assume you’ve received a final Order of Removal as an inadmissible alien and that you have been detained as a result.Â Are there any remedies still left you to remain in the U.S.?
HUMANITARIAN INDEFINITE DEFERRED DEPARTURE
As an example of this possibility, we have a client who was given a final Order of Removal by a Judge.Â He has a U.S. citizen son, age 6 in first grade, who is completely dependent on his father.Â The boy’s mother is in a hospital, permanently paralyzed because of an accident, who cannot care for her son.Â The father as a result has total custody of his son; he is his sole economic and emotional support.Â The father takes care of his son when he is not working.Â After school the son is taken care of by a nanny.Â Â On weekends he is taken care of by his father and together they visit the child’s mother in the hospital.Â Â The father is entitled to obtain humanitarian extended deferred departure because of the son’s absolute dependence on his father.
Another example would be a father who has been found inadmissible and in a final order of removal because he had not applied for asylum within one year from Mexico.Â Â He has three US. Citizen children under the age of 10 who are totally dependent on their father and would have to go to Mexico with their father if he had to leave.Â Country conditions in Mexico have radically changed so that these children would be at risk of kidnapping or of violence.Â The father could apply for humanitarian indefinite deferred departure.
90 DAY RULE
If an alien has been under a final Order of Removal and has been incarcerated,Â the Attorney General under a Constitutional Mandate must remove the alien within 90 days unless there are exceptional circumstances.Â Â The Attorney General would release the alien under the supervision of Immigration and Customs Enforcement (ICE).Â
Under an Order of Removal, the alien is entitled to designate a country to which he wishes to be removed.Â If he/she does not designate a country, then ICE would deport the alien to the country of his citizenship, or if this is not possible, then to the country of birth, or if this is not possible, then to the country of last residence, or then to any other country willing to take the alien.
The alien seeking relief from the final Order, needs to demonstrate that there is no likelihood of removal in the reasonable foreseeable future.Â Certain foreign governments do not take back their nationals who have been ordered removed such as Guyana.Â Â Other nations do not cooperate with the U.S. on removal because they place impossible obstacles to their nationals to return such as Cote d’Ivoire.
Release may be granted before 90 days if the Field Officer concludes that it is in the public interest to do so, provided the detainee is not violent and does not pose a threat to the community and will not violate the conditions of release and that the detainee will not flee.
An ordered removed alien released for the aforesaid reasons has the right to employment authorization.Â There is no judicial review if the Attorney General or a District Director grants this status.
If you need help or advise, call us at 212-944-9420.