By: Akanksha A Panicker
When the US government removes an immigrant from the country, the individual is said to be deported. However, the preferred term is ‘removed.’ Deportation can occur regardless of whether the immigrant is documented or undocumented and finds its basis on US Immigration Law. Thus, the circumstances for removal can vary, wherein immigration authorities can enforce departure in multiple scenarios like catching immigrants attempting to cross the U.S. border, the deportation of undocumented individuals in the country after they have been detained, and the negative results of cases in immigration court.
Immigration and Customs Enforcement is responsible for implementing immigration matters like conducting arrests or transferring individuals into the system after prison time. Everyday immigration matters, such as application processing, are handled by U.S. Citizenship and Immigration Services, or USCIS, who can also conduct removal proceedings. This often happens upon rejection of lawful permanent residence without any other claim to remain in the United States.
Customs and Border Protection, however, is responsible for guarding the border and the land within. Customs are often seen at play in air and seaports, wherein they have the power to conduct expedited removals without a hearing. However, they mostly refer these individuals to the Executive Office for Immigration Review, who is the final decision-maker in cases allowing individuals to defend themselves if they do not have a removal on their record already.
[1.0] REASONS FOR REMOVAL
Violation of immigration law will cause removal regardless of status as a documented or undocumented immigrant, even though it is more likely to happen in the latter case. Removal proceedings can allow an individual to plead reasonable bases for undocumented status, which can provide time for the right registration. This is not the same as contravening Visa regulation, wherein an individual tries to work on a tourist or student visa without employment authorization. Other immigration laws that can be broken that might cause the same could be a failure to notify the immigration office of a change in address within ten days, receipt of public assistance before the five-year limit, or staying in the United States with an expired visa.
Fraud refers to activities done in the pursuit of a green card, like marriage without the intent of establishing a family with a US citizen, false declaration of assets or misstating documents, or getting a divorce within two years of marriage. Any immigrant who violates the terms of their stay can be deported or removed from the United States. However, any immigrant who is not a US citizen, including green card holders, is still wont to be deported if they do something on the immigration list of grounds.
Fraudulent activities do not mean the same as criminal activity. However, any crime can cause deportation since immigrants are rarely incarcerated. Misdemeanors and serious crimes like an aggravated felony, failing to register as a sex offender, domestic violence, fraud, and moral turpitude can cause an individual to be deported. However, an individual can apply for naturalization even if they have a criminal offense but would require good behavior to be proven for five years establishing good moral character.
The deportation grounds can vary across commission of certain types of crimes committed within five years of being admitted to the United States. However, document fraud, if committed, as well as failure to advise USCIS of change of address within ten days of moving, can also lead to deportation. Drug abuse or drug-related violations can also be reasons for deportation.
[2.0] RIGHTS OF AN IMMIGRANT FACING REMOVAL
Even if a ground of deportation has been violated, the Attorney General may waive it if [A.] the immigrant is lawfully admitted for permanent residence if no previous civil money penalty was imposed against them and [B.] the offense was incurred solely to assist, aid, or support their spouse or child (and no other individual). No court has jurisdiction to review the Attorney General’s decision to grant or deny a waiver under this clause.
However, all non-citizens have the right to a lawyer and other rights under the US Constitution to provide a fair trial to the immigrant. However, often the immigrant is asked to sign peaceable deportation without a hearing, which they do to prevent having an order of deportation on their record.
This applies to non-citizens in the United States. Those who have not entered the country yet do not enjoy the same rights and can be removed expeditiously or denied entry altogether. However, this is not the case for refugees seeking asylum if they have a legitimate fear of persecution if forced to return to their home country.
Immigration court proceedings are administrative, meaning they’re less formal than ordinary court proceedings, and the usual rules of evidence don’t apply. Its own attorney will represent USCIS. The judge and both attorneys may ask the immigrant questions, and either attorney may bring in witnesses to testify. While the hearing should be full and fair, incumbent governments often pressure judges to resolve the same in haste.
The hearing should last as long as is needed to present and hear all the evidence, though the Trump Administration has been putting intense pressure on judges to proceed quickly. The hearing can cause the judge to issue an order of removal applicable from the expiry of the allotted time of appeal. Appeals can be done to the Board of Immigration Appeals or the federal court system.
Cancellation of removal is a defense to deportation if an individual has a criminal conviction that is not an aggravated felony, which would require the immigrant to have [A.] been a lawful permanent resident (had a green card) for at least five years, [B.] resided in the U.S. continuously for seven years after having been admitted in any status; and [C.] not been convicted of an aggravated felony.
Only a few defenses against deportation from the U.S. Immigration cannot remove a U.S. citizen, which would protect individuals whose parents were US citizens or naturalized citizens living in the US as a lawful permanent resident. This is also applicable if the child were found in the US under five years old when their parents were unknown. However, proving citizenship under the same is exceedingly complicated and required the individual to know when they were born, when the citizen parent or grandparent resided in the US when they were born. IN case of divorce, it is necessary to know who had custody during a divorce or whether they were naturalized before the immigrant in question turned 18.
A person with an Immigration Court case can file an application for naturalization and ask the Immigration Judge to stop the deportation case if he can show “exceptionally appealing or humanitarian factors” For this plea to hold, the government Trial Attorney or US Citizenship & Immigration Services (USCIS) must be in agreement to the eligibility of naturalization for the individual.
[3.0] WHAT IS ASYLUM
Asylum is for someone who has suffered harm or fears harm in their country because of race, religion, nationality, actual or suspected political opinion, or membership in a particular group. It must be applied for within one year of arrival in the United States until changed or extraordinary circumstances are proven, which means changes in the home country’s status or within the refugee’s own life. This would be a serious illness, depression from past harm, or changes in immigration status.
Withholding of removal or relief can also be sought under the Torture Convention. While asylum is granted for people who fear harm or persecution, it is not available for persecution from a crime. It would hold that prosecution was to punish the individual for political activity, religion, nationality, race, etc.
Asylum cannot be granted if convicted of an aggravated felony or if an individual is considered a danger to the community. If a serious non-political crime was committed in the country, the individual is not eligible for asylum, even if they assisted in others’ persecution.
[4.0] WHAT makes ADJUSTMENT OF STATUS MEAN
Adjustment of status means becoming a lawful permanent resident. This often means obtaining a green card, done by either getting married to a US citizen, having a US citizen child who is older than 21 years of age or having a US citizen parent.
The relation that holds US citizenship is required to file a family petition with Immigration, termed Form I-130, filed with Form I-185 with the Immigration Judge to depict admissibility. Felony cases and crimes of moral turpitude, along with drug convictions, can very easily interfere with this status.
Abused spouses, children, and parents who have been abused by a U.S. citizen or lawful permanent resident spouse, parent, or child can file a self-petition seeking legal status without asking the abuser to file the papers.
[4.1] CANCELLATION OF REMOVAL
An additional type of cancellation of removal, which allows people to remain legally in the U.S. despite never having a green card or legal status before, can be sought. The person must meet certain requirements such as [A.] they must have been physically present in the U.S. for 10 years; [B.] they should have good moral character during that time, [C.] they must demonstrate “exceptional and extremely unusual” hardship to their U.S. citizen or lawful permanent resident spouse, parent or child if s/he were to be deported. Hardship to oneself does not count.
Most criminal convictions bar one from this type of cancellation of removal since one cannot show good moral character. These convictions include any conviction resulting in imprisonment for 180 days or more, any drug conviction, an aggravated felony, etc. Moreover, there are special rules if a person has suffered battering or extreme cruelty from a U.S. citizen or lawful permanent resident spouse or parent. For example, a spouse who was “battered” can apply for cancellation of removal after being in the U.S. for only 3 years. Also, the target of abuse from a U.S. citizen or lawful permanent resident spouse or parent can file a self-petition seeking legal status without relying on their abuser.
[5.0] VOLUNTARY DEPARTURE
Voluntary departure is a provision that allows an individual to leave the U.S. but not be deported. This renders it easier to return legally to the U.S. However, most criminal convictions make it difficult, if not impossible, to receive voluntary departure though it may be requested in Immigration Court at the beginning of one’s case if the individual is are not removable for terrorist activities or an aggravated felony.
It must be understood that if this is requested at the beginning of the trial, one would not need to show good moral character. This means that even with a criminal conviction, one may still be able to get voluntary departure.
At the end of the case (after the individual may have averred any other defenses to deportation), one may receive voluntary departure if they [A.] show physical presence in the U.S. for at least one year before the Notice to Appear; [B.] have a good moral character for at least the previous 5 years; [C.] are not removable for an aggravated felony or terrorism; [D.] can pay the way back to the home country; [E.]post a voluntary departure bond; and [E.] have not received voluntary departure before after being in the U.S. without admission or parole. Waiting time on a filing for re-entry
If deported, the U.S. government will block these individuals from returning for five, ten, or twenty years, or even indefinitely. Typically, most deportees are subject to a ten-year ban. The precise period of time depends on the details and conditions of the expulsion.
Five years’ ban happens whether the person has been summarily expelled or deported to the US border or any port of entry (airport, seaport, etc.) on the grounds of a judgment that they are inadmissible. This can also be applicable if the person was expelled or deported by removal hearings after arriving in the United States. The bar can also occur if the individual either declined or neglected to participate or continue until the immigration court proceedings were concluded or have departed before the procedure is completed without reasonable excuse.
If the expulsion has been ordered after the termination hearing before the Immigration Court, a ten-year expulsion is applicable even if the individual had been absent from the hearings. Had the person been deported once before and later sought illegally to re-enter the nation before the initial ten-year inadmissibility term expired, they can be subject to twenty years of ban.
Permanent bans occur if the individual was [A.] guilty of an aggravated felony or [B.] unlawfully after being deported.
[6.0] DEPORTATION REPERCUSSIONS
Deportation cannot be reversed easily. The visa should be revoked if the individual has already violated its terms. If the person is a green card holder and has committed a felony or deportation act, they are deprived of their U.S. legal permanent resident status.
In very exceptional cases, one can petition to ‘reopen’ or ‘reconsider’ the case to determine whether an injustice has been committed against the person or if fresh evidence has come out in their favor.
More often than not, if one is looking to move back to the United States, they will need to restart immigration proceedings by showing that they are suitable for a non-immigrant (temporary) or immigrant (permanent) visa to decide how they can overcome the inadmissibility to qualify for a visa effectively.
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Sources
1. The grounds of deportation are found in § 237 of the Immigration and Nationality Act (I.N.A.) or 8 U.S.C. § 1227
2. 8 U.S.C. §1401(g)
3. 8 U.S.C. §1432(a)
4. 8 U.S.C. §1401(f)
5. 8 C.F.R. §1239.2(f).
6. 8 U.S.C. §1101(a)(42) & §1158.
7. 8 U.S.C. §1158(b)(2).
8. 8 U.S.C. §1158(b)(2).
9. 8 U.S.C. §1229, b(b).
10. 8 U.S.C. §1101(f)
11. 8 U.S.C. §1229b(b)(2).
12. 8 U.S.C. §1229c(a)(1).
13. 8 U.S.C. §1229c(b).
14.In April 2020, the U.S. Supreme Court, in a 5-4 decision in Barton v. Barr, expanded the list of committed crimes that could lead to immigrants’ deportation to include those who have green cards. The suit was filed by Jamaican immigrant Andre Barton who tried to get the order for his removal canceled
“Supreme Court rules green card-holding immigrant subject to deportation.” Washington Examiner. 2020-04-23.
