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Removal or Deportation

What is Deportation or Removal?

Deportation, or “removal”, occurs when a non-citizen alien is ordered to leave the United States.  This may occur for several reasons, such as an expired visa or for certain criminal convictions.  It should be noted that immigration authorities and agencies currently use the term “removal” instead of deportation.  The term removal may also include other proceedings such as exclusion (barring an immigrant from entry into the U.S.).

Under very specific circumstances, an alien who is facing removal may be eligible for relief from removal.  If they are found to be eligible, the person will not be removed from the U.S., or their removal may be postponed until a later date.  The alien has the burden of proving that they are eligible for such relief. 

The U.S. Citizenship and Immigration Services (USCIS) issues a removal order (commonly known as a “deportation order”) to a foreign-born person when the person has violated an immigration law. This is generally done when the USCIS wants to return the person to their country of origin

 A person can violate immigration laws in a number of ways, including:

  • The person did not voluntarily leave before their visa expired;
  • The person has committed a crime;
  • The person is otherwise a threat to public safety;
  • The person entered the U.S. illegally; or
  • The person's presence in the U.S. was based on fraudulent immigration documents.

Officially there are four different kinds of removals: 

  • Removals ordered by immigration judges after a legal proceeding;
  • Administrative removals;
  • Expedited removals; and  
  • Reinstatements of prior removal orders.

Unless a person has been arrested and detained after being charged with a crime, a removal begins when a person receives a Notice to Appear, which is sometimes commonly referred to as a “deportation notice”. 

What are some Different Forms of Relief from Removal or Deportation?

Relief from removal generally falls under two categories:  1) Discretionary relief; and 2) Administrative/Judicial Relief.  Discretionary relief is available while removal proceedings are being conducted.  Administrative and Judicial relief is available after removal hearings have been concluded.  The lists below are general descriptions of these types of relief; more details can be learned by inquiring with a lawyer.

Some forms of Discretionary Relief from removal include:

  • Voluntary Departure– This is where the alien is allowed to leave the U.S. on their own freewill.  This is the most common type of relief.  While the person will still be leaving the country, voluntary departure allows the person to leave without bearing the stigma of deportation.  This may allow them to re-enter in the U.S. in the future after a certain amount of time.  Aliens who are granted voluntary departure must depart within a specified period of time.  Failure to leave the U.S. within that time will result in further penalties such as a fine. 
  • Cancellation of Removal- This is only granted to certain aliens who qualify (usually lawful permanent residents).  The person must satisfy a long list of requirements, including continuous residency requirements, no criminal record, and a showing of “extreme hardship”
  • Adjustment of Status– Here the immigration judge allows an alien to change their status from non-immigrant to that of lawful permanent resident.  Again, various requirements must be met in order to qualify for this form of relief. 
  • Asylum– Relief from removal is granted in limited circumstances where the alien would face severe political persecution if they return to their country of origin.  Asylum is generally difficult to obtain as it requires a showing that the persecution is real and not imagined or exaggerated.

Administrative or judicial forms of relief are similar to appeals.  They seek to overturn or challenge the conclusion that was reached by an immigration judge or immigration panel.  These types of relief may include:

  • Motion to Reopen or Motion to Reconsider- The alien may file a motion to have their case reopened or reconsidered.  The purpose of the motion is to introduce new or additional evidence that may not have been available at the initial hearing.  The person's case will be reexamined in light of the new facts.  These motions do not automatically prevent removal; the judge must issue a stay of removal (see below) while the case is being reconsidered.
  • Stay of Removal- A judge may issue a stay of removal, which prevents immigration officials from executing an existing removal order.  The stay of removal may either be automatic or discretionary.
  • Administrative Appeal- This is where the alien is allowed to appeal to the higher governing agencies within the immigration system. 
  • Judicial Review- This allows the alien's case to be heard in a Federal court.  However, federal jurisdiction over immigration removal cases is very limited; only certain cases qualify for federal judicial review, as the procedure is somewhat complex.

Each of the types of relief listed above is associated with various requirements, filing deadlines, and eligibility factors.  You may need to consult with an immigration lawyer to determine whether or not you are eligible to claim any of these forms of relief from removal. 

What is Suspension of Removal?

Suspension of removal or suspension of deportation was a type of immigration relief for persons facing removal or deportation hearings.  It was eligible to certain aliens under immigration laws, in particular person who: had continuous presence in the U.S. for at least 7 years; demonstrated good moral character, and faced “extreme hardship” if faced with removal.

Is Suspension Different From Cancellation of Removal?

Suspension of deportation was replaced by a different form of relief called “Cancellation of Removal”.  This occurred due to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).  This Act replaced suspension of removal with cancellation of removal.

Cancellation of removal is available for any lawful permanent resident who:

  • Has held LPR status for at least 5 years;
  • Has resided in the U.S. for at least seven years (may be under any type of immigration status); and
  • Does not have any convictions involving aggravated felonies

For non-permanent residents, the requirements for cancellation of removal are:

  • Continuous U.S. residence for at least 10 years;
  • Good moral character during these 10 years;
  • Is not subject to criminal bars related to a criminal conviction as outlined in immigration statutes; and
  • Ability to establish that removal from the U.S. would result in “extreme hardship”

Thus, cancellation of removal is a more permanent form of relief than suspension of deportation was.  However, cancellation may be associated with stricter requirements than the previous form of relief.  

How to Know If I Have a Removal or Deportation Order

As mentioned above, usually a person determined by the USCIS to be subject to removal first receives a written Notice to Appear at a hearing before an immigration judge. The Notice to Appear informs the person that they have done something that warrants their removal from the U.S. and tells them to appear in a federal immigration court at an initial hearing. 

The person should attend the initial hearing in order to learn why the USCIS seeks the person's removal. The initial hearing usually proceeds quickly. The case is set for a later hearing on the merits of the USCIS's case for removal. 

Also, the immigration judge who presides at this first hearing asks the person who has been ordered removed whether they admit or deny factual allegations and admit or deny the charge of removability that is shown on the Notice to Appear. In most cases a person should deny the allegations and contest the charge of removability. Then the U.S. Department of Homeland Security's (DHS) must prove that the person is actually removable.

At the hearing on the merits of the case, the person whose removal is sought either presents an affirmative defense, that is establishes a good reason as to why they should not be removed, or submits a request for relief of removal. The person can present evidence to show why they should not be removed. Evidence can be documents or the testimony of witnesses. 

The government also has the opportunity to present its evidence to show why the person should be removed. The judge then rules on the removal, either ordering the person removed or ordering the government not to remove the person. The person would receive notice of the judge's ruling.

Undocumented immigrants might have grounds to avoid the removal as follows: 

    • Family-based adjustment of status: If a person has entered the U.S. legally, they may qualify an adjustment of status to get legal status through a family member, who would most likely be a U.S. citizen. 
    • Asylum: Asylum offers legal protection to people who have fled persecution or fear future persecution in their home country. A grant of asylum allows legal status in the U.S., a work permit, and eventually a green card. 
    • Withholding of removal: To obtain withholding of removal, a person must show that it is  “more likely than not” that they would be persecuted in their home country if they return. People who are granted withholding of removal are usually ineligible to apply for permanent residence or travel outside of the U.S. The person can, however, stay in the U.S. and obtain a work visa. 
    • Protection under the Convention Against Torture (CAT): Protection under CAT is available only if it is “more likely than not” that the government of the person's home country, or some person or group the government cannot control, will inflict torture on that person. CAT is also like withholding in that people who receive CAT protection cannot ever get U.S. permanent residence or travel outside of the country. But CAT recipients can usually remain and work in the U.S..
    • Cancellation of Removal for People Who Are Not Lawful Permanent Residents: This remedy is a way of obtaining a green card if a person can prove their presence in the U.S for ten years and can also show that their removal would cause “exceptional and extremely unusual hardship” to one of their “qualifying relatives,” e.g. a spouse, parent, or child who is a U.S. citizen or permanent resident:
    • Cancellation under the Violence Against Women Act (VAWA). Similar to cancellation of removal for non-permanent residents, a person applying for VAWA cancellation must show that they have been “battered or subjected to extreme cruelty” by a “qualifying relative” and meets other requirements, e.g. three years of physical presence in the U.S.;
    • Deferred Action for Childhood Arrivals (DACA): This program allows certain people who are unlawfully present in the U.S. after being brought to the country as children to receive a renewable two-year period of deferred action from deportation and become eligible for a work permit in the U.S. The person cannot have either felonies or serious misdemeanors on their records. There are other requirements as well;
    • Prosecutorial Discretion: This is a decision by the government agency that is trying to deport a person to stop trying to do so. This may make a person eligible to apply for a work visa, but not for other benefits such as the right to travel. Usually, persons whose cases are closed based on prosecutorial discretion do not have a criminal record, but there are no hard and fast rules about who can receive this benefit. Prosecutorial discretion is difficult to obtain and must be discussed with the government attorney handling a person's case.

If the judge orders the person's removal after a hearing on the merits of their case, they can then file an appeal in most, but not all cases.

There are a number of types of letters and forms used in the large variety of immigration processes and procedures. A “deportation order letter” might be a Notice to Appear or it might refer to a letter that a friend or relative submits to an immigration judge on behalf of a person who has been ordered removed asking for clemency or pleading hardship as a reason for the judge to allow the person to stay in the U.S.

Is Appealing a Removal or Deportation Order Possible?

If an immigration judge orders a person's removal, or deportation, the order can be appealed with certain exceptions. The person who has been ordered removed must file an appeal to the U.S. Board of Immigration Appeals (BIS) within 30 days of the immigration judge's decision in their case. The Board of Immigration Appeals reviews immigration court decisions. There is no deadline for the BIA to review immigration court decisions, however it currently claims that it tries to resolve all cases within 180 days. This means that a person could expect to receive a decision within 180 days of filing their appeal.

If a person appeals a judge's decision that removal is appropriate and the BIA rejects the appeal, the person can then appeal the BIA decision to the federal appellate courts. An appeal to the federal appellate courts would be time-consuming and would best be handled by an experienced immigration attorney. 

Whether a removal order can be appealed depends on the grounds for removal. If a person's removal has been ordered because they committed a crime of which they have already been convicted, then an appeal of a removal order is not available.

For example, if the removal order is based on the fact that the person committed a crime, an appeal would only be allowed for the purpose of convincing the judge that the person is innocent. The appeal would be a kind of criminal trial. But if the person has already been convicted of the crime, whether by a jury after a trial or by entering a guilty plea, the person may not appeal. The person's guilt has already been decided and there would be no point in an appeal.

What is a Waiver of Removal?

A request for a waiver of removal, a stay of removal, basically requests the government to forgive the person's illegal presence in the U.S. and stay, or stop, their removal. This is not necessarily the same thing as an appeal, because the removal hearing may not have occurred before the waiver is requested. Waivers are usually available in cases in which the grounds for removal are not based on criminal convictions. 

Another similar option is cancellation of removal.  This is usually only an option if the removal would have serious effects on a person's family, and the person has been living in the U.S. for at least 10 years. Also, the person's family members must be U.S. citizens (whether through naturalization or by birth).

What is Voluntary Departure?

Voluntary departure does not really prevent a person from being removed or deported from the U.S.  With voluntary departure, the person agrees to leave the country before they are legally made to do so by Immigration and Customs Enforcement (ICE). This can have beneficial effects for the person later on, because it may improve their chances of re-entering the country at a later time. 

On the other hand, if a person resists an order to be removed from the country, it can have negative effects on their ability to re-enter the U.S. again at a later date  For example, if a person is made to leave by ICE because they have ignored a removal order, they may be banned from re-entry for a number of years, or even permanently.

Can I Come Back Legally after Being Deported?

Generally, once a person has been deported, they are not allowed to re-enter the U.S. In fact, illegal reentry after deportation can result in criminal prosecution by the U.S. government for improper re-entry, a crime that comes with punishment that includes up to 10 years in prison and/or a large monetary fine.

What Happens If an Immigrant Illegally Reenters The United States After Being Deported?

According to the Immigration and Naturalization Act (INA), an alien deported from the United States cannot lawfully reenter for 5 years, or 20 years for a second removal.  An alien who violates theses exclusion periods may be ordered removed again if they try to reenter the country.  While removal proceedings are not criminal, lengthy jail sentences may be imposed for repeat offenders.  For example, a man was recently sentenced to 45 months in prison by a federal judge for trying to reenter the U.S. 6 times in 4 years.

Border patrol officers are now given great discretion to turn back undocumented aliens without a judicial hearing, if there is a reasonable likelihood an alien is lying about his or her identity and lacks any valid documentation.  Proponents of this say that it saves the court system from overcrowding, but naysayers say that this violates the immigrants' due process rights. 

What Can Immigrants Do If Accused of Illegal Reentry?

Generally, deportations of aliens living peaceably in the U.S. are relatively rare.  If a person is under threat of deportation, authorities will generally allow the person to voluntarily depart, which may prevent future restrictions on lawful reentry. 

The 5 and 20 year restrictions can be avoided if the alien files a special application with the Attorney General. Applications are generally unsuccessful absent a good reason, such as miscarriage of justice or emergency asylum.  In order to qualify, the immigrant should fill out an I-212 form, the form required if an immigrant wishes to legally enter the country after being deported.

Immigrants can try to argue that the original deportation order was invalid.  However, immigration courts usually consider the book closed after a deportation is ordered, such that any records of deportation proceedings are not subject to being reopened or reviewed, absent a “gross miscarriage of justice.”

Many deportation cases center on a crime that the undocumented alien is accused of committing.  A deported alien, if convicted of an aggravated felony, is forever banished from the U.S. If the immigrant is accused of a crime, they do have the right to an attorney before the decision for deportation is made. 

How Can A Lawyer Help With Appealing a Removal or Deportation Order?

 The process of appealing a removal or deportation order can be complicated and is only available under certain circumstances.  In most cases, you need to hire an experienced immigration lawyer if you are facing a removal order or if you want to appeal an order of removal. 

Removal (deportation) hearings are among the most serious types of legal proceedings, because deportation can eliminate a person's right to re-enter the U.S. legally. So a person should be sure to consult with a qualified immigration attorney if you need legal representation. 

An experienced immigration lawyer can review the facts of your situation and identify any grounds for opposing the removal that may be available to you. The law in this area is complex and a qualified lawyer is best equipped to advise you of all of your options.