When you violate the immigration statutes or commit a serious crime as a noncitizen, you will be subject to removal, also called deportation proceedings. If the outcome of the proceeding is not in your favor, the federal government orders your removal from the United States. Deportation is the worst nightmare for any noncitizen because you are forced to leave the businesses and relationships you had created behind and start from scratch in your mother country.
Complex guidelines and procedures are available, including the opportunity to defend against the removal. The blog below explains the meaning of deportation, deportability grounds, the removal process, and how to protect against it to avoid pitfalls that could lead to the removal or allow you to remain in the U.S.
Legal Definition of Deportation
Deportation, otherwise called removal, is when the federal government initiates a removal proceeding to remove you from the country by the relevant immigration agencies. When the federal government orders your deportation, an immigration court or officer has deemed you not allowed to stay within the U.S. and ordered your removal.
The U.S. Immigration and Customs Enforcement (ICE) is one of the government agencies that deal with immigration matters. The agency makes arrests, identifies aliens apprehended for various crimes and transfers them into the immigration enforcement system, and issues you with a letter informing you when and where you should appear for transport to leave the U.S.
Another government agency on the front line on matters of immigration is the U.S. Citizenship and Immigration Services (USCIS). The agency’s role is to process immigration applications and send noncitizens into deportation proceedings. The agency can learn about your deportability through your application for an immigration benefit that was unsuccessful, and you have exhausted your rights to stay in the country.
Customs and Border Protection (CBP) can speed up your removal even without initiating a proceeding when you enter the U.S. through the border or other entry points via air and sea. Alternatively, the agency can send you to the Executive Officer for Immigration Review (EOIR) to establish whether you are in the U.S. legally.
Removability Grounds
When you think about deportation, what comes to your mind is an illegal alien who crossed the border without permission or overstayed their visa. The U.S. has many illegal aliens gaining entry and being removed annually. However, other ways are available in which you could face a removal proceeding. If you violate the conditions of your lawful stay in the U.S., you risk removal. As a tourist, you will be deportable if you accept employment.
Also, you will face removal if you are a student who refuses to study full-time or an employee that changes jobs, away from the party that petitioned for your admission in the U.S. as an employee.
Similarly, when you have permanent residency, you still risk deportation when you commit a crime or refuse to inform the government of an address change. As long as you are an alien, you risk a removal proceeding if you do not comply with the immigration laws.
One common ground of removability is engaging in specific crimes like an aggravated felony, crimes of moral turpitude (CMT), or domestic violence 60 months after your admission to the country or gaining permanent residency. Again, you are deportable when as an illegal alien, you have a prison sentence of at least twelve months or commit at least two CMTs from separate criminal wrongs.
Other reasons include:
- You aided someone in smuggling other aliens into the U.S.
- You refused to tell the USCIS of your new address ten days after relocating
- You engaged in document fraud
- You deceptively claimed to be a U.S. citizen
- You engaged in marriage fraud to obtain admission to the U.S.
- You are or were a drug addict who has a prior for a drug-related offense other than simply possessing an ounce of marijuana or 8g of hashish.
These are not the only grounds for removal. Several other reasons are available, but you need to consider what the law says. If you are new to immigration laws, an immigration attorney is the best person to talk to. These individuals will establish the reason for triggering a deportation proceeding against you and find ways to challenge it so that you remain in the country.
The Deportation Process
The USCIS handles all cases relating to legal immigration into the U.S. EOIR, on the other hand, is a division in the Department of Justice (DOJ) that manages or supervises court processes when you appear before an immigration court. Besides, the agency conducts appellate reviews and administrative proceedings. The proceedings you will undergo in the immigration court are discussed further.
Removal Proceeding
Most aliens who end up deported are first placed in a removal or deportation hearing. The proceeding is held to establish if you are deportable or not. The hearing commences when the government, through the Department of Homeland Security (DHS), files a Form I-862, a Notice to Appear with an immigration court. This happens after you have been served with a notice informing you of your required presence before an immigration judge. The government files the motions when it feels that you are in the country without proper documentation or have breached your visa or status terms. Also, you will receive notice if you have committed a crime that hinders you from remaining in the U.S. The document you are served with contains the following information:
- The proceeding’s nature
- The legal basis or authority of the hearing
- Your actions, as an alien, that triggered the proceeding
- The charges preferred against you by a prosecutor and the statute you have allegedly violated
- Your capacity as a noncitizen to have legal representation during the proceeding
- The penalties for skipping the scheduled court proceeding
- A condition to furnish the Attorney General (AG) with your current physical address and telephone number
When you are placed under a removal hearing, you will receive additional information about a scheduled court date, the location, and the time of the hearing. At this proceeding, the judge determines whether you should remain within the U.S. borders or leave.
The case’s outcome hinges on whether you qualify for relief from removal or meet the criteria provided under the immigration laws. To benefit from the relief, you must first admit you are deportable and then complete the relevant relief forms.
Once you file these documents with the court, the immigration judge sets a date for an individual hearing. This type of court proceeding occurs when the DHS is pursuing your removal. In the proceeding, the DHS must demonstrate using clear, undeniable, and convincing evidence that you are removable. Like in a court trial, your immigration attorney will have the opportunity to make opening remarks, cross-examine witnesses, arrange exhibits, and build a solid case against your deportation.
After the statements, the immigration judge will analyze the proof presented and witness testimonies, to grant or deny your application for deportation relief. When the judge denies your request, they will order your removal. However, when your application is approved, you will continue to enjoy your stay. An attorney is critical in this process based on their role in the case, so you must hire an experienced one if you want to stay in the U.S.
Your Rights in a Removal Proceeding
Even if you are an alien, you still enjoy your U.S. constitutional rights, including the right to have legal representation during a court hearing. It means that you cannot just be removed from the U.S. without exercising your right to a hearing.
Still, authorities attempt to rush the process by asking you to sign documents agreeing to removal without being heard. When you have no defense against your deportation, it is best to leave voluntarily because once the court orders your deportation, it will appear in your record, making it challenging to obtain re-entry.
Nevertheless, when you still believe that you are in the U.S. legally and have the right to remain there, you should exercise your right to legal representation. An immigration attorney will increase the chances of a favorable outcome, although you will be paying them out-of-pocket.
It is worth understanding that when you have not gained entry into the U.S., your rights are not the same as those of an individual already in the country. You will face expedited removal when you are arrested trying to enter the U.S. through the border illegally, without proper documentation, or with forged documents. You are likely to be placed on expedited removal if you are at an entry port or entered the country illegally and cannot demonstrate you have been in the country for over twenty-four months. Under this removal form, you do not appear before an immigration judge. An immigration officer has the discretion to order your deportation quickly without a removal hearing.
However, when you are refused entry into the U.S. and are reasonably afraid of persecution when you return to your home country, you will be considered an asylum seeker under the Migrant Protection Protocols. The immigration officials will let your asylum case be heard, and you will not face expedited deportation.
It is worth noting that immigration proceedings are not the same as criminal court processes. An attorney represents the USCIS. The court will give your attorney and that of the USCIS the chance to present their evidence, ask questions and bring witnesses to provide their testimony.
Once all the proof has been heard, the judge will issue a verdict. If the ruling is against you, they will issue a deportation order. You can opt to obey the order or file an appeal if dissatisfied with the outcome. However, when the appeal timeline lapses, the court’s decision is final, and the process of deportation will commence. The aggrieved parties should file the appeal to the Board of Immigration Appeals before the deadline. The law does not allow deportation while there is a pending appeal, so you will remain in the U.S. until the court judges the appeal.
Master Hearing
The first proceeding in your immigration case is the master hearing, which can be a one-time proceeding or a series of hearings. After the first appearance in court, you can secure multiple future master hearings to allow you to prepare all the proof you need, additional documents, or await the status of a pending application with the USCIS. The information the immigration judge will need from you in the proceeding includes:
- Your names
- Your address
- Whether you need legal representation
- Whether you understand the language of the court process or require a translator and language, you need a translation.
The hearing could be your last if you lack evidence to counter your removal or admit to sufficient proof that would convince an immigration judge deportation is necessary. Therefore, it is critical to hire an attorney early enough so that they can gather the relevant documents or testimonies essential to convince the immigration judge of the need for a series of master proceedings to prove your case and avoid removal.
Canceling Removal in California
Even after the court has ordered your deportation, you can remain in the country through a removal cancellation. The AG will allow you to stay as a permanent resident or green card holder if you meet the following criteria:
- You have had a green card or been a lawful permanent resident for over five years
- Have legally lived in the U.S. for seven straight years
- You have zero conviction for an aggravated felony
The law is ambiguous on what amounts to an aggravated felony. So, even if you face removal, your attorney can argue that the offense that led to your previous conviction was not an aggravated felony and that the AG should cancel your deportation.
You still qualify for removal cancellation when you are a nonresident, like a visa-holder or an illegal noncitizen. However, you must meet the following requirements:
- You must have lived in the U.S. for ten years or more
- During this period, you must have demonstrated exemplary behavior or appeal
- You must not have been sentenced for a crime listed under the Immigration and Nationality Act
- Your deportation adversely impacts your children, parents, or spouse who are permanent residents or citizens
If you are a domestic violence (DV) victim, your removal order will be halted even when you do not meet the above mentioned conditions. As an alien who has been a DV victim, you can apply for removal cancellation through the Violence Against Women Act (VAWA). To be eligible for cancellation under this program:
- You must have been battered or undergone extreme brutality in the hands of your parents or spouse, who is or was a United States citizen or a green card holder.
- You have been living in the U.S. for at least three straight years
- You have been of excellent morals during your time of stay
- You are not inadmissible
- Deportation could result in extreme hardship for you, your children, spouse, or parents
Even men can file for cancellation through VAWA if they are DV victims. The Act is not limited to women.
Application for Cancellation of Removal
If you are a legal permanent resident subject to removal because of a criminal conviction, you can apply for removal cancellation by completing Form EOIR-42A. Here, you fill out info about you, your immediate family, and your time in the United States Soil.
Also, the forms must contain your previous addresses and employment. Part 7 of the form contains questions tailored to determine your eligibility for cancellation. If you are unsure of how to answer the questions, discuss them with your attorney before submitting them because they will be used to establish whether the immigration judge should grant or deny your request for cancellation of removal.
The filing fee for the Forms is $305 plus a biometrics cost of $85. When 14 years or older, you must show up for your biometric appointment before the merits proceedings in court.
Once you have filed the application and given a court date, the next stage is to gather evidence to prove you deserve a cancellation of the deportation order. in the proceeding, you must prove that:
- You have been a lawful green card holder who has lived in the country for at least five years
- You have not been sentenced for an aggravated felony
- You deserve a win as a discretionary matter
- You have not obtained a removal cancellation or relief for removal in the past
- You have lived in the U.S. for seven straight years
Furthermore, after the government has checked your biometrics info, they can establish whether you have an aggravated felony sentence or have been granted removal cancellation in the past. And if you have a criminal record, you must present certified disposition copies to demonstrate the conviction was not for an aggravated felony. You will continue your stay in the U.S when a cancellation is granted.
Find an Experienced Los Angeles Immigration Attorney Near Me
A removal or being placed in a deportation proceeding can adversely impact your capacity to remain or ultimately reenter the U.S. Deportation could have you barred from entering the United States for three to ten years. To learn whether your removal can be prevented, contact California Immigration Attorney to discuss your case. Call us at 424-789-8809 to arrange a meeting as soon as possible.