Deportation

Deportation is a civil proceeding wherein the federal government orders a non-citizen to be removed from the United States, for violating immigration or criminal laws. Prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the process of deporting an alien was called "deportation" and was limited to a non-citizen who was already present in the United States, regardless of entry (legal/illegal). Deportation was differentiated from exclusion proceeding which was applied to an alien who was apprehended at the border, before entry into the country. The IIRIRA eliminated these distinctions and the general term "removal proceeding" is now used for determining whether an alien is inadmissible, deportable, or eligible for relief from removal.

Removal proceeding is commenced by the Department of Homeland Security (DHS), which took on the functions of the Immigration and Naturalization Service (INS). The DHS has the discretion to "serve" an alien with a charging document (Notice to Appear) containing allegations of immigration law violations. An Immigration Judge will hear the case and will generally make two findings:(1) whether or not the alien is removable from the United States, and (2) whether or not the alien is eligible for a form of relief from removal. Our law firm can assist you with defense to removal matters and represent you before the U.S. Department of Justice's Executive Office for Immigration Review (Immigration Court). We have over a decade of experience with immigration removal defense.

Grounds for Removal

The following aliens are deportable:

1. An alien who was inadmissible at the time of entry or adjustment of status or who violates his status is deportable.
   • Present in violation of law - Any alien who is present in the US in violation of any law or whose nonimmigrant visa has been revoked
   • Violated nonimmigrant status or condition of entry - Any alien who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status; Or any alien who failed to comply with terms and conditions of his admission on health-related grounds, as certified by the Secretary of Health and Human Services
   • Termination of conditional permanent residence - Any alien with permanent resident status on a conditional basis who has had such status terminated
   • Smuggling - Any alien who (prior to the date of entry, at the time of any entry, or within 5 years of the date of any entry) knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law, except in certain cases involving family reunification
   • Marriage fraud - Any alien who obtains admission into the US through marriage to a US citizen, but that such marriage was contracted to evade any provisions of immigration law

2. An alien convicted of a criminal offense is deportable.
• Moral turpitude - Any alien convicted of crimes of moral turpitude committed within five years, or ten years in the case of some aliens granted lawful permanent resident status, of the time of entry, if sentence of one year or longer may be imposed
• Multiple criminal convictions - Any alien convicted of two or more separate crimes involving moral turpitude regardless of whether they are imprisoned
• Aggravated felony - Any alien convicted of an aggravated felony
• High speed flight - Any alien who engaged in high-speed flight from an immigration checkpoint
• Controlled substances - Any alien convicted of an offense involving controlled substances, other than a single offense involving possession of thirty grams or less of marijuana for personal use; Or any alien who is a drug abuser or addict
• Firearm offenses - Any alien convicted of certain firearm or destructive device offenses
• Miscellaneous crimes - Any alien convicted of certain crimes against the government for which a term of imprisonment of five years or more may be imposed; Or who violated the Selective Service Act; Or who violated the Trading with the Enemy Act
• Domestic violence - Any alien convicted of a crime of domestic violence, stalking, violation of a protective order, or child abuse
• Failure to register - Any alien who violated the Alien Registration Act, the Foreign Agents Registration Act, and other federal laws relating to alien registration
• Document fraud - Any alien who engaged in falsification of immigration documents
• Falsely claiming citizenship - Any alien who falsely represented himself to be a U.S. citizen
• Security and related grounds - Any alien who engaged in activities jeopardizing the national security
• Terrorist activity - Any alien engaged in terrorist activity
• Foreign policy - Any alien whose presence in the United States would have serious adverse foreign policy consequences
• Public charge - Any alien who become a public charge within five years of entry as a result of causes not arising post-entry
• Unlawful voter - Any alien who voted unlawfully

Discretionary Relief from Removal

The alien subject to removal proceedings may request discretionary relief at any time before the Immigration Judge enters his/her final order. The alien has the burden of proving that he/she is eligible for relief under the law and that he/she deserves such relief as an exercise of discretion.

Adjustment of Status
An alien in removal proceedings may apply to adjust status before an Immigration Judge. In order to adjust status, the alien must be admissible to permanent residence and an immigrant visa be immediately available. A common way to be eligible for adjustment of status is by marrying a United States citizen. Other ways for an alien to adjust status.

Asylum
The alien may seek asylum if he/she could demonstrate that he/she is unable to return to his or her home country because of persecution or fear of persecution on account of his or her race, religion, nationality, membership in a particular social group, or political opinion. However, an alien may be ineligible for asylum under certain circumstances, including having failed to file an asylum application within an alien's first year of arrival in the United States, being convicted of an aggravated felony, or having been found to be a danger to national security.

Cancellation of removal
Cancellation of removal may be granted to qualifying U.S. permanent residents and non-residents:

Permanent residents:

• If resident alien under removal proceedings has been a lawful permanent resident for at least 5 years;
• If resident alien under removal proceedings continuously resided in the United States for at least 7 years after having been lawfully admitted; and
• If resident alien has not been convicted of an "aggravated felony" as defined in immigration law

Non-residents:

• If alien under removal proceedings has been continuously present for at least 10 years;
• If alien under removal proceedings has been a person of good moral character during that time;
• If alien under removal proceedings has not been convicted of an offense that would make him or her removable; and
• If alien under removal proceedings demonstrates that removal would result in exceptional and extremely unusual hardship to his or her immediate family members (limited to the alien's spouse, parent, or child) who are either U.S. citizens or lawful permanent residents.

Unconditional Withdrawal
An alien may be allowed to withdraw from removal proceedings where he/she could 1) demonstrate that he/she possesses both intent and means to depart immediately; 2) establish that factors directly relating to the issue of admissibility indicate that justice would be served.

Voluntary Departure
In lieu of being subject to removal proceedings, the alien, with the permission of the Attorney General, may voluntarily depart the United States at the alien's own expense. An alien granted voluntary departure before the completion of the removal proceedings must leave the U.S. within 120 days. If voluntary departure was granted at the conclusion of the removal proceedings, the alien must depart within 60 days from end of the proceedings or within a shorter period set by the Immigration Judge. Although for good cause, extension of the period may be granted by the District Director, it may not exceed the 120-day aggregate limit. Administrative/Judicial Relief from Removal

Motion to reconsider
The alien may file a single motion to reconsider the decision that the alien is removable from the United States. Such motion must be filed within 30 days from date of entry of a final administrative order of removal. The motion shall specify errors of law or fact in the order and must be supported by pertinent authority.

Motion to reopen
Generally, an alien may file a single motion to reopen proceedings within 90 days of date of entry of the final administrative order of removal. The motion to reopen shall state the new facts or changed circumstances that will be proven if the motion is granted and must be supported by affidavits or other evidentiary material. There are exceptions to the 90-day period, such as asylum cases (changed country conditions, if the basis of the motion is to apply for asylum), ineffective assistance of counsel, and joint stipulation by the Department of Homeland Security to reopen the case for compelling reasons.

Stay of removal
A stay of removal prevents the DHS from executing an order of removal. An automatic stay of removal is granted during the time allowed to file an appeal (unless the right to appeal is waived), while an appeal is pending, or while a case is before the BIA by way of certification. The stay of removal is temporary and is usually accompanied by a motion to reopen or reconsider.

Administrative appeal
The alien or the DHS may appeal the decision of the Immigration Judge to the Board of Immigration Appeals (BIA). The BIA may dismiss the appeal, sustain the decision of the Immigration Judge, or remand the case to the Immigration Judge.

Judicial review
Federal courts are conferred with jurisdiction to hear appeals over certain decisions appealed from the Board of Immigration Appeals. The appellant has 30 days from the date of a final removal decision to file an appeal.