VIDEO: Waiving your right to appeal in deportation case is a bad idea and must be done knowingly and intelligently

Hi. I’m Jim Hacking, immigration and deportation attorney, practicing law here in St. Louis, Missouri. The Board of Immigration Appeals recently handed down a short decision talking about a respondent’s right to appeal his order of removal. In deportation proceedings, a lot of times people have attorneys representing them, but sometimes they don’t. when a person goes through deportation, they’re called the respondent and sometimes the respondent doesn’t have an attorney and they’re known as filing pro se, that is without an attorney. Obviously, being immigration attorneys, being deportation attorneys, we believe that everyone who goes through deportation proceedings should have an attorney and if they can’t afford one, sometimes there’s legal clinics and other places that will allow them to get an attorney.

Deportation is such a perilous situation and the law is so complicated that it is almost impossible for an individual who is uneducated in immigration law to represent themselves competently in immigration. In this case, a man from Guatemala found himself in deportation proceedings. He did not have an attorney, so the Department of Homeland Security’s attorneys argue to the judge why this person should be deported and the immigration judge asked the man if he had any legal reasons why he should be allowed to stay and/or any defenses to deportation, the man said he didn’t have any, and the judge ordered him deported.

The case discussed what happened next, and that is a discussion between the immigration judge and the man from Guatemala. The judge asked him, “Do you waive your right to appeal?” The man said, “Well, mmm. The decision is final. I don’t have anyone here to help me. Only God knows.” That was the sum total of the discussion of whether or not the man wanted to appeal or not. The judge handed down the decision on October 17th of last year and two weeks later, the Board of Immigration Appeals received a motion to reconsider, to re-open or to appeal, and it again was done by the man without an attorney. He filed it on his own, less than two weeks after the immigration judge concluded that the man had waived his right to appeal.

Obviously, an appellate right is very important and it’s one that’s not supposed to be waived easily or quickly, and so the Board of Immigration Appeals looked at the transcript and they asked themselves, “Did the man from Guatemala purposely and knowingly waive his right to appeal and did the immigration judge document that properly?” The Board concluded that that interchange between the judge and the man did not constitute, did not equal a knowing and voluntary waiver of his right to appeal. The Board sent the case back to the immigration judge and asked the judge to go back on the record to talk with the man about issues related to appeal and to further explain the judge’s reason for ordering the man deported.

Apparently the oral decision granting deportation did not provide much detail for the Board of Immigration and Appeals to review it. Obviously the immigration judge thought that since the man had waived his rights to appeal, that not that much needed to be included in the record, and so the Board of Immigration Appeals asked the judge to re-open the case to not only flesh out the reason for the deportation, but also to make sure and to nail down whether or not the man wanted to waive his right to appeal to the Board of Immigration Appeals. At the end of the day, not much might change. The man is probably still going to be deported, but I think the case highlights a couple of things.

One, obviously the man was going to be a whole lot better off if he had an attorney representing him in the deportation proceedings. Two, you have to preserve that right to appeal. You’re always going to get a chance to have another board take a crack at it and have the board take a crack at looking at your case, and although in certain circumstances, you might not necessarily want to appeal, in most cases you’re going to want to preserve that right, especially if you don’t have an attorney. It’s important that you keep these things in mind if you find yourself in deportation proceedings or if you have questions about it. If a loved one of yours is in deportation, please pick up the phone and give us a call, 314-961-8200, or you can e-mail us jim@hackinglawpractice.com. Thanks a lot.