Who can be deported?
Any alien that is in the United States may be subject to deportation or removal if he or she:
- Is an inadmissible alien according to immigration laws in effect at the time of entry to the U.S. or adjustment of nonimmigrant status;
- Is present in the U.S. in violation of the Immigration and Nationality Act or any other U.S. law;
- Violated nonimmigrant status or a condition of entry into the U.S.;
- Terminated a conditional permanent residence;
- Encouraged or aided any other alien to enter the U.S. illegally;
- Engaged in marriage fraud to gain admission to the U.S.;
- Was convicted of certain criminal offenses;
- Failed to register or falsified documents relating to entry in to the U.S.;
- Engaged in any activity that endangers public safety or creates a risk of national security;
- or Engaged in unlawful voting.
Deportation or Removal Porcess
A Notice to Appear (NTA) is issued by the U.S. Immigration and Customs Enforcement, served to the alien, and filed with the immigration court. In addition to containing general information about the immigrant (name, country of origin, etc.), the NTA also states the reasons for the deportation or removal. A hearing is scheduled, at which the immigration judge asks if the alien is ready to proceed with the case, or if he or she needs time to secure an attorney. If the alien needs time to secure an attorney, a hearing is scheduled for a later date. Once the alien has an attorney, or has elected to proceed without one, the alien will be asked by the immigration judge to verify the contents of the NTA. If the judge determines that the information in the NTA is correct and that the alien can be deported, the alien is given the opportunity to apply for any form of relief from deportation. If the alien is eligible for a form of relief and decides to apply for it, an individual hearing date is scheduled. If the alien is not eligible, deportation will be ordered. If an individual hearing is held, the alien will be given the opportunity to give testimony and have witnesses testify on his or her behalf.
At the conclusion of the hearing, the immigration judge will either make an oral decision on the matter, or will release a written decision at a later date. If the alien has been ordered deported, the alien has 30 days from the date of the decision to appeal the decision to the Board of Immigration Appeals (BIA). If the BIA decides against the alien, the alien has the option of appealing to the appropriate U.S. Court of Appeals. The immigration service has the opportunity to appeal an unfavorable individual hearing decision, but may not appeal an unfavorable decision by the BIA. An appellate court decision can be appealed to the U.S. Supreme Court by either the alien or the immigration service.
The Removal Process
Within the U.S. Department of Justice, more than 200 Immigration Judges located in 53 Immigration Courts nationwide conduct proceedings and decide individual removal cases. Removal proceedings account for approximately 80 percent of Immigration Judges' caseload. Federal rules of evidence are inapplicable in Immigration Court; thus, an Immigration Judge has greater authority to consider most kinds of evidence in deciding a case. The types of proceedings an Immigration Judge may preside over are briefly discussed below.
Removal Hearings - Deportation Defense
Removal hearings are conducted to determine whether certain aliens are subject to removal from the country. The distinction between exclusion and deportation proceedings has been eliminated, and aliens subject to removal from the United States are now all placed in removal proceedings. Thus, the removal proceeding is now generally the sole procedure for determining whether an alien is inadmissible, deportable, or eligible for relief from removal.
The Department of Homeland Security (DHS), which absorbed the functions of the Immigration and Naturalization Service (INS), is responsible for commencing a removal proceeding. If the DHS alleges a violation of immigration laws, it has the discretion to "serve" the alien with a charging document, known as a Notice to Appear. This document orders the individual to appear before an Immigration Judge, and advises him or her of, among other things:
Nature of the proceedings against the individual; Individual's alleged acts that violated the law; Individual's right to an attorney; and Consequences of failing to appear at scheduled hearings. Removal proceedings generally require an Immigration Judge to make two findings: (1) a determination of the alien's removability from the United States, and (2) whether the alien is eligible for a form of relief from removal. For more information on the types of relief available to an alien, please see the Forms of Relief from Removal factsheet.
Bond Redetermination Hearings for those in Detention
An Immigration Judge conducts a bond redetermination hearing for aliens who are in DHS detention. The alien makes a request to the Immigration Judge to lower or eliminate the amount of the bond set by the DHS. These hearings are generally informal and are not a part of the removal proceedings. This decision can be appealed (by either the alien or by DHS) to the Board of Immigration Appeals (BIA).
An Immigration Judge conducts a withholding-only hearing to determine whether an alien who has been ordered removed is eligible for withholding of removal under U.S. law or the U.N. Convention against Torture (CAT)
Delaying Deportation or Removal
"Stay" Proceedings When an alien is detained, has an action pending before the Board of Immigration Appeals (BIA), and is in "danger" of being immediately deported or removed, the alien, or the alien's attorney or representative, may request a stay of deportation/removal from the BIA.
Once the BIA has received a stay request, the BIA is faced with an emergency situation in which the stay request must be given immediate attention and priority over other work.
Conditions that Must Be Met for the BIA to Consider a Request for a Stay of Deportation/Removal 1. Is the alien in the physical custody of U.S. Citizenship and Immigration Services (USCIS)? If an alien is detained by the USCIS and deportation/removal is imminent, the BIA will consider the stay request promptly. A stay will only be considered once the alien has actually reported and is in the physical custody of the USCIS. It is the responsibility of the attorney to call and inform the BIA when the alien is in the custody of the USCIS.
2. Is there an action pending before the BIA - does the BIA have jurisdiction? A motion to reopen or reconsider a prior Board decision, or an appeal from an Immigration Judge's denial of a motion must have been filed with the BIA (Clerk's Office Appeals Unit). Generally, there is an automatic stay when a direct appeal is filed from an Immigration Judge's order. However, there is no automatic stay when (a) the alien clearly waived appeal at the hearing, then files an appeal, or (b) when a direct appeal is taken from an Immigration Judge's order that was entered in absentia.
Procedures in Stay Requests - Appeals, Motions & Requests
An appeal or a motion must be properly filed with the Clerk's Office at the BIA. The BIA will accept filings in person only at the window of the Office of the Clerk, on the 13th Floor of Building 3 at EOIR's Skyline Office Complex in Falls Church, VA. This applies to the USCIS as well as the public.
A stay request can be submitted to the BIA in writing or can be requested telephonically through a BIA secretary.
FAX stay requests will be accepted ONLY: If necessary, i.e. because the alien's scheduled deportation does not allow enough time for the stay request to be delivered by other means. If there is an underlying motion pending at the BIA. If the BIA asks that the stay request be sent by FAX.
Written by:Mark Carmel