Bench & Bar March/April 2026

FEATURE: POTPOURRI

FORMS OF RELIEF AND DEFENSES Common defenses in removal proceedings include: • Asylum or withholding of removal for fear of persecution or torture. • Cancellation of removal for certain permanent residents or long-term non-permanent residents who meet statutory requirements. • Adjustment of status for those eligible for family- or employ ment-based visas. • Waivers of inadmissibility, includ ing those for unlawful presence or certain criminal convictions. Attorneys in other practice areas should recognize that criminal convictions, family matters, and prior immigration violations can influence removal eligibility. DETENTION VS. RELEASE Noncitizens in removal proceedings may be detained in immigration facilities or released on bond pending adjudication. Factors influencing detention include flight risk, criminal history, and national security concerns. Attorneys may need to advise cli ents or family members on bond hearings, bail applications, and custody consider ations during removal proceedings. REMOVALS TO THIRD COUNTRIES Recently, U.S. immigration authorities have increasingly engaged in removals to third countries, typically under coopera tive agreements with neighboring states. 25 Such removals may occur when the home country is unwilling or unable to accept the individual, or for expedited removal pro cesses. Third country removals are subject to both statutory and international legal constraints, raising complex questions for attorneys advising clients involved in removal proceedings. These constraints include non refoulement obligations under the U.N. Convention Against Torture and the 1951 Refugee Convention, which bar removal to a country where an individual would face torture or persecution, and require credible determinations about harm risk before removal. 26 Additionally, recent litigation and court rulings have highlighted

proceed concurrently with divorce, custody, or criminal proceedings without requiring disclosure to the abuser. SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) SIJS applies to certain undocumented chil dren in state custody who have suffered abuse, neglect, or abandonment. 18 It allows eligible children to petition for permanent residence based on findings from state juvenile courts. Attorneys involved in child advocacy, family law, or custody matters may encounter SIJS cases, and understand ing eligibility requirements is essential for protecting clients’ long-term immigration prospects. UNLAWFUL IMMIGRATION Unlawful immigration refers to the pres ence of foreign nationals in the United States without lawful authorization. This includes both individuals who entered without inspection at a port of entry and those who entered lawfully but overstayed their visas. Understanding the nuances of unlawful immigration is critical for attor neys because legal consequences, including removal, inadmissibility, and limitations on employment or benefits, can affect clients in a wide range of practice areas. Government data indicate that visa over stays account for a substantial portion of the unlawful population. A 2024 Congressio nal report indicates that overstays comprise approximately 42 percent of unlawful resi dents, or roughly 4.5 million individuals. 19 Individuals who entered without inspec tion constitute the remaining majority. These distinctions are significant because enforcement, eligibility for relief, and policy considerations differ depending on the method of entry. 20 Unlawful immigrants are diverse in terms of national origin, age, and length of res idence in the United States. Historically, Mexico has been the largest country of origin, though recent trends show growth in arrivals from Central America, Asia, and Africa. 21 The majority of unlawful immi grants have resided in the United States VISA OVERSTAYS VS. UNINSPECTED ENTRY

for several years, often establishing family, economic, and community ties that make removal both socially and legally complex. REMOVAL (DEPORTATION) PROCESS “Removal” is the formal statutory term for what is commonly referred to as “deporta tion.” Removal proceedings are conducted under the authority of the Immigration and Nationality Act (INA) and the Exec utive Office for Immigration Review (EOIR), a division of the Department of Justice. Understanding the removal pro cess is essential for attorneys, particularly in criminal, family, and civil practice, because certain legal outcomes can trigger or influ ence removal proceedings. INITIATION: NOTICE TO APPEAR Removal proceedings typically begin when an individual receives a Notice to Appear (NTA), which formally charges them with being removable under INA provisions. 22 NTAs outline the legal basis for removal and schedule a hearing before an immigra tion judge. Failure to appear can result in an in-absentia removal order, which carries long-term consequences including perma nent bars to reentry. IMMIGRATION COURT PROCEEDINGS Immigration court proceedings differ from criminal or civil courts: • There is no right to government-ap pointed counsel. Individuals must hire private attorneys if they wish to be represented. 23 • Hearings may involve multiple con tinuances, evidentiary submissions, and complex legal arguments re garding eligibility for relief. • Judges issue decisions on whether removal is warranted and whether any relief or protection is available. Studies show that individuals represented by counsel have significantly higher rates of successful relief compared to unrepre sented respondents. 24 This underscores the importance of timely referral to immigra tion specialists.

18 march/april 2026