Law Offices of Victoria Bezman
17337 Ventura Blvd. Suite 107
Encino, CA 91316
Phone: (818) 907-7677
Fax: (818) 907-7678

Deportation

Deportation (also called "removal") occurs when the federal government formally removes an alien from the United States for violations of a number of immigration or criminal laws, described in more detail below. Once deported, an alien may lose the right to ever return to the United States, even as a visitor.

Removal is a legal proceeding, and an alien who is subject to this procedure has legal rights prior to being removed from the country, including the right to challenge the removal itself on procedural or constitutional grounds. Following is a discussion of the removal process.

Note: This fact sheet summarizes the most common types of immigration court proceedings. These descriptions are not fully inclusive and do not encompass the many regulatory and court interpretations that may have bearing on the following information. Also, the descriptions that follow are subject to change since Congress may legislate new laws. Accordingly, the following summaries are intended only to assist the public's general understanding of the types of immigration court proceedings.

Classes of Deportable Aliens

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 Process

  • 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

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.

Forms of Relief from Removal

Below is a summary of the most frequently requested forms of relief that are available to an alien who has been found to be removable.

Discretionary Relief

Once an alien in proceedings is found to be removable, he or she, if eligible, may request one or more types of discretionary relief. This section describes some types of discretionary relief that are available during a hearing; administrative relief and judicial review after a hearing is completed are discussed below. The alien has the burden of proving that he or she is eligible for relief under the law, and usually that he or she deserves such relief as an exercise of discretion.

Voluntary Departure -- Voluntary departure is the most common form of relief from removal and may be granted by Immigration Judges, as well as the Department of Homeland Security (DHS), which absorbed the functions of the former Immigration and Naturalization Service. Voluntary departure avoids the stigma of formal removal by allowing an otherwise removable alien to depart the United States at his or her own personal expense and return to his or her home country, or another country if the individual can secure an entry there. It is important to note that aliens granted voluntary departure must depart within the time specified by the Immigration Judge. Although an Immigration Judge has the discretion to set a shorter deadline, aliens granted voluntary departure prior to the completion of removal proceedings must depart within 120 days, and those granted such relief at the conclusion of removal proceedings must depart within 60 days. In addition, in order to avoid being penalized for choosing to appeal a decision rather than depart, the Board of Immigration Appeals (BIA) usually will extend an earlier grant of voluntary departure for 30 days. As with other forms of discretionary relief, certain individuals will be found ineligible for voluntary departure, and those granted voluntary departure who fail to depart are subject to fines and a 10-year period of ineligibility for other forms of relief.

Cancellation of Removal -- This form of discretionary relief is available to qualifying lawful permanent residents and qualifying non-permanent residents. For lawful permanent residents, cancellation of removal may be granted if the individual:

  • Has been a lawful permanent resident for at least 5 years;
  • Has continuously resided in the United States for at least 7 years after having been lawfully admitted; and
  • Has not been convicted of an "aggravated felony," a term that is more broadly defined within immigration law than the application of the term "felony" in non-immigration settings.

Cancellation of removal for non-permanent residents may be granted if the alien:

  • Has been continuously present for at least 10 years;
  • Has been a person of good moral character during that time;
  • Has not been convicted of an offense that would make him or her removable; and
  • 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.

It is important to note that different standards are used in determining eligibility for victims of domestic violence.

Asylum -- Under the Immigration and Nationality Act, the Attorney General may, in his discretion, grant asylum to an alien who qualifies as a "refugee." Generally, this requires that the asylum applicant demonstrate an inability to return to his or her home country because of past persecution or a well-founded fear of future persecution based upon 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. Similar forms of relief are Withholding of Removal and applications under the U.N. Convention against Torture (CAT).

Adjustment of Status -- This form of discretionary relief is available to change an alien's status from a non-immigrant to a lawful permanent resident. Aliens who have been previously admitted into the United States can apply to the DHS for adjustment of status, while aliens in removal proceedings apply before an Immigration Judge. Several conditions must be met, including that the alien is admissible for permanent residence and an immigrant visa is immediately available at the time of application. Aliens who qualify for visas allowing an adjustment of status are often petitioned for by a spouse (or another family member) or an employer. Certain individuals, including criminals and aliens who fail to appear for proceedings or fail to depart after a grant of voluntary departure, and those who were ordered removed may be ineligible for adjustment of status.

Bond Redetermination Hearings

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).

Withholding-Only Hearing

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/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

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:

  1. 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.
  2. If there is an underlying motion pending at the BIA.
  3. If the BIA asks that the stay request be sent by FAX

Illegal Reentry into the U.S. After Removal: Crime and Punishment

After an alien has been legally "removed" from the United States, federal criminal law makes it a felony for that alien to reenter (or be found in) the country without approval of the government.

What Constitutes "Illegal Reentry"?

Under the applicable federal criminal statute, the Immigration and Nationality Act, it is not merely illegal reentry after removal that constitutes the crime. Rather, the law applies to any alien who reenters the U.S. or is found within the country, without government approval, after having been:

  • Denied admission to the U.S.;
  • Excluded from the U.S.;
  • Deported from the U.S.;
  • Removed from the U.S.; or
  • Departed from the U.S. while an order of exclusion, deportation, or removal is outstanding.

Penalties for Illegal Reentry

Under relevant federal statutes, an alien who commits illegal reentry as described above will be punished with:

  • A fine; or
  • Imprisonment for not more than two years; or
  • Both fine and imprisonment.

Penalty Enhancements for Prior Criminal Convictions

If the alien reenters or is found in the U.S. without government approval, after a criminal felony conviction for a non-aggravated felony, or after three or more misdemeanor convictions for drug-related crimes or crimes against persons, he or she is subject punishment by:

  • A fine; or
  • Imprisonment for not more than 10 years; or
  • Both fine and imprisonment

For aliens reentering or found in the U.S. without government approval, after a criminal conviction for an aggravated felony, the statutory maximum term of imprisonment is 20 years. Other criminal penalty increases may be imposed for aliens who have been removed after certain kinds of incarceration, and aliens deemed to be associated with terrorism.