Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Deportation proceedings

Aliens face substantial difficulty in deportation cases, known formally as “removal proceedings,” when the government seeks to oust them from this country. Some of the obstacles were reflected in recent rulings of the 8th Circuit Court of Appeals and one by its Minnesota counterpart. Each immigrant lost the right to stay in this country under varying circumstances. Singh v. Lynch, 495 F.3d 553 (8th Cir. 2015) (native of India gave vague, inconsistent, self-serving testimony lacking credibility in raising “persecution” claim.); Muiruri v. Lynch, 803 F.3d 984 (8th Cir. 2015) (Kenyan not allowed to remain due to multiple misrepresentations in immigration forms regarding his marital status).

In addition to the federal cases, the Minnesota Court of Appeals rejected an attempt by a man from El Salvador to withdraw his guilty pleas in making terroristic threats to his live-in girlfriend, paving the way for his potential removal in Avendano v. State, 2015 Minn. App. LEXIS 1013 (Minn. Ct. App. 2015) (unpublished). The claim of ineffective assistance of counsel in not advising him of the likely deportation as a consequence of the plea in Dakota County District Court followed an unfavorable 8th Circuit ruling against the immigrant from Avendano v. Holder, 770 F.3d 731 (8th Cir. 2014).

Aliens and their advocates seeking asylum in this country should proffer specific evidence establishing the underlying facts supporting their claim, which can be particularly difficult in persecution cases, where the alien must prove “a well-founded fear,” based on race, religion, nationality or membership in a particular social group or political opinion. If criminal charges are brought, aliens and their lawyers should be aware of the potential consequences, whether deportation or otherwise, of the outcome of these proceedings before strategic decisions are made in them.

Government attorneys should scrutinize the record carefully seeking any false or improper representations made or contradictory positions taken by the alien in administrative proceedings, which can be used to support removal.

– Marshall H. Tanick

Hellmuth & Johnson, PLLC

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