Deportation/Removal of Aliens
Deportation is the formal removal of an alien from the United States when the alien has been found removable for violating the immigration laws. Exclusion is the denial of an alien’s entry into the United States. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act consolidated the exclusion and deportation proceedings into one removal proceeding. The new removal provisions became effective on April 1, 1997, and apply to proceedings commenced on or after that date. The removal process is initiated by the Department of Homeland Security (“DHS”). The DHS serves the alien a Notice to Appear (“NTA”) that orders the alien to appear for an immigration hearing. The NTA advises the alien of the nature of the proceedings, the alleged immigration law violations, the privilege of being represented by an attorney, and the consequences of failing to appear. The DHS must prove that the alien is in the United States unlawfully and should be removed. At the hearing, the alien may present evidence supporting his or her case against removal.
The consequence for an alien found inadmissible in a removal proceeding is that the alien is not admissible to the United States for 5 years from the date of removal. (INA § 212(a)(9)(A)(i)). If the alien was ordered removed after a removal hearing, he or she is not admissible to the United States for 10 years. The U.S. Department of Justice provides additional information regarding removal proceedings.
Grounds For Removal
Section 237 of the Immigration and Nationality Act (“INA”) lists the general classes of deportable aliens. For example, an alien can be deported for the following reasons:
- Inadmissible Aliens - Any alien who at the time of entry, or while adjusting status was within an inadmissible class. INA§237 (a)(1)(A);
- Presently in Violation of Law - Any alien who is present in the United States in violation of this Act, or any other law of the United States. INA §237 (a)(1)(B);
- Violated Nonimmigrant Status or Condition of Entry INA§237 (a)(1)(C);
- Termination of Conditional Permanent Residency INA §237 (a)(1)(D);
- Smuggling - Any alien who encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of the law. INA §237 (a)(1)(E);
- Marriage Fraud INA §237 (a)(1)(G);
- Criminal Offenses INA §237 (a)(2)(A) and (B);
- Certain Firearm Offenses INA §237 (a)(2)(C);
- Crimes of Domestic Violence - Aliens can be deported for stalking, violation of a protective order, or crimes against children. INA §237 (a)(2)(E);
- Document Fraud INA §237 (a)(3)(C);
- Falsely Claiming Citizenship - Any alien who falsely represents, or has falsely represented, him or herself to be a citizen of the United States for any purpose or benefit. INA §237 (a)(3)(D);
- Terrorist Activities INA §237 (a)(4)(B);
- Participated in Nazi Persecution, Genocide, or the Commission of Any Torture or Extra Judicial Killing INA §237 (a)(4)(D); and
- Unlawful Voters - Any alien who has voted in violation of any federal, state, or local constitutional provision, statute, ordinance, or regulation is deportable. INA §237 (a)(6).
For a complete list of the grounds for removal/deportation under INA §237, please click here.
Under the INA §212(a), certain classes of aliens are ineligible for visas or admission into the United States. For example, the DHS can remove aliens attempting to gain access into the United States or refuse to issue visas for the following reasons:
- Health Related Reasons INA §212(a)(1)(A);
- Certain Criminal Grounds INA §212(a)(2)(A);
- Aliens Intending to Engage in Prostitution INA §212(a)(2)(D); and
- Involvement with Terrorist Activities §212(a)(3)(B).
Relief From Removal
During the alien’s hearing with the immigration judge, there are various forms of relief available to the alien. For example, the following relief from removal proceedings is available to certain aliens:
- Cancellation of Removal (INA §240A(a)) is available to an alien who:
a Was a lawfully admitted as a permanent resident for at least five years;
b Has continuously lived in the United States for seven years since admission; and
c Has not been convicted of an aggravated felony.
- Adjustment of Status (240A(b)(1)) is available to an alien who:
a Was lawfully admitted for permanent residence;
b Has continuously lived in the United States for ten years since admission;
c Has been a person of good moral character;
d Has not been convicted of certain offenses; and
e Whose removal would result in hardship to the alien's United States citizen or lawful permanent resident family member.
- Alien Spouses or Children who have been battered by United States citizens may also be eligible for relief from removal under INA §240A(b)(2).
- Voluntary Departure (INA §240B) - The Attorney General may also permit an alien to voluntarily depart the United States at the alien's own expense, instead of being subjected to removal proceedings under INA §240. The benefits to voluntary departure are that it permits the alien to enter into an agreement to leave the United States on his or her own terms, to resolve family arrangements, to dispose of property, and to avoid the consequences of a formal order of removal. Additionally it saves the taxpayers money because they do not have to pay for the removal process.
- Withholding of Removal For Asylum Claims (8.C.F.R. §1003.14(b)) - Aliens at removal hearings can file applications for asylum with the immigration judge. Such applications will also be considered a request for withholding of removal, and a request for protection under the Covenant Against Torture (“CAT”).
Appeals After Removal Order Issued
If the immigration judge rules that the alien is removable, the alien can appeal the judge’s decision to the Board of Immigration Appeals (“BIA”). The alien has 30 days from the date of the judge’s decision to appeal to the BIA. The BIA will review the immigration judge’s legal matters with the highly deferential de novo standard. The BIA reviews the immigration judge’s factual matters with the more lenient, clearly erroneous rule. If the BIA upholds the alien’s removal order, the alien can appeal to the United States Federal Court of Appeals. Finally, if the Appeals Court rules against the alien, the alien can appeal to the United States Supreme Court. The appeal process may take several years to complete.