Deportation / Removal Defenses
The Department of Homeland Security, through its various enforcement agencies, initiates the process to remove non-citizens from the United States. Deportation/removal proceedings are conducted by Immigration Judges under the auspices of the Executive Office for Immigration Review (EOIR).
A person against whom removal proceedings have been instituted is placed in a stressful situation and, in the absence of legal help, may be unable to adequately assess the available options and take all necessary steps to prevent removal. Once removal proceedings have been initiated, time is of the essence: certain steps, if not taken before a particular point in the process, cannot be taken at all. Moreover, one may consider preventive measures to avoid the frustration of having the clock ticking and deportation looming on the horizon as a distinct possibility. Knowing who may be subject to removal and what can be done to prevent this undesirable outcome may be crucial to an individual's future in the United States. Due to the complexity of immigration laws and serious consequences of removal, it is advisable to seek legal representation and assistance in this matter.
The terms "deportation" and "removal" are often used interchangeably, despite the significant legal differences between the two terms. Deportation generally refers to the removal of a foreign national from a country after a hearing before an Immigration Judge. The Illegal Immigration and Immigrant Responsibility Act of 1996 (IIRIRA) introduced the term "removal" instead of the former term. Under the IIRIRA, persons seeking admission to the United States, or persons who were admitted but are removable (i.e., due to overstay or for certain criminal convictions) are placed in removal proceedings.
Grounds for Deportation / Removal
An alien against whom the Immigration Court has initiated removal proceedings may be charged with any applicable ground of inadmissibility or deportability.
The Immigration and Nationality Act (INA) specifies the following classes of inadmissible aliens, i.e., aliens ineligible to receive visas and ineligible to be admitted to the United States:
Cancellation of Removal for Lawful Permanent Residents & Non-Permanent Residents
- Aliens inadmissible on health grounds (e.g., a serious communicable disease; or drug abuse).
- Aliens inadmissible on criminal grounds (e.g., illegal drug trafficking; prostitution and other commercialized vice; or money laundering).
- Aliens inadmissible on security grounds (e.g., espionage; terrorist activities; or membership in the Communist or any other totalitarian party).
- Aliens inadmissible on public charge grounds, i.e., the consular officer's or the Attorney General's opinion that the alien is likely to become a public charge.
- Aliens inadmissible on labor certification and qualifications grounds.
- Illegal entrants and immigration violators.
- Aliens without the required entry documents.
- Aliens permanently ineligible for citizenship and draft evaders.
- Aliens previously removed.
- Aliens inadmissible on miscellaneous grounds (e.g., polygamy; helplessness from disease or disability; international child abduction; unlawful voting; or denouncing citizenship to avoid taxation).
The INA also specifies classes of deportable aliens:
- Aliens who are inadmissible at the time of entry or of adjustment of status or who have violated their status (e.g., those whose conditional permanent resident status has been terminated; or those involved in smuggling of another alien or in marriage fraud).
- Aliens who have committed a criminal offense (e.g., willful tax evasion; fraud; theft; counterfeiting; prostitution; child abuse; unlawful drug possession; or unlawful possession of a firearm).
- Aliens who failed to register, falsified documents, or have falsely claimed citizenship.
- Aliens engaged in activities that pose security concerns.
- Aliens who have become a public charge.
- Unlawful voters.
Relief from Deportation/Removal
A person who has been determined to be an inadmissible or deportable alien may be eligible for relief from removal, i.e., may be granted the permission to stay in the United States by the Immigration Court, provided that certain conditions are met. The most common forms of relief are:
- Cancellation of Removal for Lawful Permanent Residents & Non-Permanent Residents;
- Asylum, Withholding of Removal & Relief under the Convention against Torture (CAT);
- Adjustment of Status (AOS);
- Voluntary Departure.
According to the INA, a lawful permanent resident placed in removal proceedings may qualify for cancellation of removal under certain conditions: (1) the alien has been lawfully admitted for permanent residence for not less than 5 years; (2) the alien has resided in the United States continuously for 7 years after having been admitted in any status; and (3) the alien has not been convicted of any aggravated felony. In addition to satisfying these statutory requirements, the alien must establish that he/she merits such relief as a matter of discretion. An Immigration Judge makes this determination. The Judge must balance favorable factors (such as family ties within the United States, residence of long duration in the United States, evidence of hardship to the alien and his/her family members in case of deportation, a history of employment, the existence of property or business ties, and other evidence of the alien's good character) and unfavorable factors (such as violations of immigration law, criminal behavior, and other evidence indicative of the alien's undesirability as a permanent resident in the United States).
A nonpermanent resident subject to removal can be granted cancellation of removal and adjusted to the permanent status if (1) the alien has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (2) the alien has been a person of good moral character during such period; (3) the alien has not been convicted of certain enumerated offenses that are grounds for inadmissibility and/or deportation; and (4) the alien establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a United States citizen or lawful permanent resident. In order to establish "exceptional and extremely unusual hardship," the applicant for cancellation of removal must demonstrate that his/her spouse, parent, or child would suffer hardship that substantially exceeds the ordinary consequences to be expected to result from the alien's deportation, but need not show that such hardship would be "unconscionable". Only hardship to qualifying relatives, not to the applicant himself/herself, may be considered to establish eligibility for cancellation, and hardship factors relating to the applicant may be considered only insofar as they might affect the hardship to a qualifying relative.
Asylum, Withholding of Removal & Relief under the Convention against Torture
The INA provides that an alien who is physically present in the United States or who arrives in the United States, irrespective of his/her status, may apply for asylum. In order to be eligible for asylum, the alien must show that he/she is a refugee, which means the alien must show either persecution or a "well-founded fear" of persecution in the country of nationality, or in which such person last resided, in the case of a person having no nationality, on account of his/her race, religion, nationality, membership in a particular social group, or political opinion. Asylum involves a two-step process: a finding of eligibility under the statute, and a discretionary decision whether to grant asylum (in the discretion of the United States Citizenship and Immigration Services (USCIS)). The government will grant an alien's request for asylum if he/she can prove that he/she is eligible for asylum, and there are no significant reasons for denying asylum. The individual who is granted asylum is permitted to travel outside of the United States. His/her spouse and children may be granted the same status. Asylum may also lead to lawful permanent resident status.
Withholding of removal is a form of relief granted when a person faces a threat of persecution on the same grounds as a person seeking asylum, but the standard of proof is higher: the person must prove that he/she is "more likely than not" to be subject to harm. Withholding of removal is a mandatory (as opposed to discretionary) form of relief, which means that it must be granted if eligibility is established. This form of relief does not allow to travel outside of the United States, does not grant any benefits to the spouse and children, and does not lead to permanent resident status.
If an alien applies for withholding of removal under the CAT, the Immigration Judge must determine whether the alien is more likely than not to be tortured at the instigation of or with the consent/acquiescence of a public official in his/her country. If the Immigration Judge determines that the alien is more likely than not to be tortured in that country, the alien is entitled to protection under the CAT, which will be granted either in the form of withholding of removal or in the form of deferral of removal. Deferral of removal is considered when the person is ineligible for withholding of removal due to being an active participant in persecutory acts, prior conviction of a particularly serious crime, or for security reasons. The successful applicant receives no lawful status in the United States and will not be released from custody if detained. This form of relief may be terminated at any time.
Adjustment of Status
Once an alien is in deportation or removal proceedings, his/her application for adjustment of status must be made and considered only in those proceedings. In this situation, AOS means change of nonimmigrant status to permanent resident status. The application is made before an Immigration Judge. An otherwise inadmissible alien may be eligible for a particular waiver of inadmissibility and may apply for that waiver and for AOS in a deportation proceeding. Moreover, since the AOS provision applies to immigrants as well as nonimmigrants, a permanent resident who is found to be removable, but is otherwise eligible for a waiver of inadmissibility, may seek AOS in the pending removal proceeding.
The burden of proving eligibility for AOS is upon the alien. To be eligible for adjustment of status to permanent resident, he/she must prove lawful immigration status, i.e., (1) lawful admission into the United States; or (2) eligibility for or immediate availability of an immigrant visa. The alien is also required to continuously maintain lawful status. The following classes of persons are excepted: (1) immediate relatives of a United States citizen; (2) foreign medical graduates and their spouses and children; (3) certain officers and employees of international organizations and their spouses and children; (4) aliens declared dependent on a juvenile court located in the United States; and (5) aliens who have served honorably, or are enlisted to serve, in the United States Armed Forces under certain conditions and their spouses and children.
The Attorney General, at his discretion, may waive inadmissibility on certain grounds: (1) inadmissibility on health-related grounds in some cases (e.g., if the applicant has an immediate family member who is a United States citizen, lawful permanent resident, or has been issued an immigrant visa; if the applicant undergoes vaccination; or if the applicant with a mental disorder posts a bond); and (2) inadmissibility on criminal grounds in certain cases (e.g., a crime of moral turpitude; multiple criminal convictions; simple possession of 30 grams or less of marijuana; prostitution and commercialized vice; or serious criminal activities if the alien has asserted immunity from prosecution).
There are some provisions of immigration law that allow certain applicants for AOS to adjust status even if they do not have lawful immigration status or failed to maintain lawful status. One category of such applicants includes those who filed a visa petition or labor certification prior to April 30, 2001. Another category includes victims of domestic violence inflicted by the spouse or a parent who is a United States citizen or lawful permanent resident.
Voluntary departure provides a limited period of time (up to 120 days), within which an alien subject to removal can remain in the United States. By the time this period expires, the person must leave the United States at his/her own expense (as opposed to being deported at the expense of the United States government, which would cover only transportation expenses). On the positive side, voluntary departure allows the person to avoid the removal order being entered into his/her record and to choose the date of the departure, provided that it falls within the granted period.
An alien must request voluntary departure prior to or at the scheduled hearing of his/her case. He/she must concede removability and waive appeal of all issues. The government may permit the alien voluntarily to depart the United States if the Immigration Judge enters an order granting voluntary departure and finds that (1) the alien has been physically present in the United States for a period of at least 1 year immediately preceding the date the notice to appear at the removal hearing was served; (2) the alien is, and has been, a person of good moral character for at least 5 years immediately preceding the alien's application for voluntary departure; (3) the alien is not deportable as an aggravated felon or on security grounds; and (4) the alien has established by clear and convincing evidence that he/she has the means to depart the United States and intends to do so ("the clear and convincing evidence" of the means to depart includes presentation by the alien of a passport or other travel documentation sufficient to assure lawful entry into the country to which the alien is departing).
Voluntary departure is discretionary: the Immigration Judge must balance the alien's adverse factors, especially his/her immigration history, against the favorable factors. Previously deported aliens and those who were granted voluntary departure at some point within the last 10 years and failed to depart within the period allowed may not be granted voluntary departure. Additionally, the Immigration Judge may impose such conditions as he/she deems necessary to ensure the alien's timely departure from the United States, including the posting of a voluntary departure bond to be canceled upon proof that the alien has departed the United States within the time specified.