Deportation

 

DEPORTATION

 

Deportation, sometimes referred to as ‘removal’, is the legal procedure by which the U.S. government removes persons without legal status or authorization.

 

An alien who enters the United States without a visa or who continues to stay after his/her visa has expired, may be liable to be deported. A legal permanent resident (LPR) who commits certain crimes may also be subject to deportation. Anyone who receives orders of deportation has a right to request a hearing before an Immigration Judge. A person who is detained at a point of entry into the United States may not always have the right to such a hearing.

 

Deportation due to False Representation

 

The Illegal Immigration Reform And Immigrant Responsibility Act Of 1996 (IIRAIRA), which has been incorporated in §237(A)(3)(D) within the Immigration and Nationality Act (INA), states that ‘any alien who falsely represents or has falsely represented, himself to be a citizen of the United States for any purpose or benefit under this act…or any federal or state law is deportable’.

 

This provision came into effect after September 30, 1996. Under this, not only can an individual already in the U.S. be deported under this provision, but a complimentary provision in the INA also precludes a potential immigrant from obtaining a Green Card.

 

Employment Eligibility Verification

 

Every employer is obliged to complete an Employment Eligibility Verification form at the time of hiring a new worker, whether a U.S. citizen or an alien. This form requires the new employee to state whether he/she is a U.S. citizen, a legal permanent resident or an alien authorized to work in the U.S. for a temporary period. To establish the identity and the employee’s eligibility, the employer is also required to obtain documents of proof. A U.S. citizen need only submit a driver’s license and his/her social security card. The employer is not entitled to ask for further proof even if he/she has a suspicion that the employee may be an alien.

 

An alien sometimes makes a false statement about his/her citizenship at the time of applying for a job. This is extremely detrimental to his/her chances of obtaining citizenship when the time comes, and could lead to deportation.

 

If an alien made such a misrepresentation after September 30, 1996, he/she can be deported from the United States. Further, if the alien is now eligible to apply for a Green Card, the application would be denied based on the false representation. It would be easy for the INS or Consular Officer, at the time of the Green Card interview, to ascertain whether such a misrepresentation was made or not. Most applications for immigrant visas require information about the last five years of employment, so if the applicant is undocumented for this period, the officer is likely to inquire about how the applicant was able to work in the U.S. The applicant may also be asked to submit the Employment Eligibility Verification form from his/her employer as additional evidence towards approval of his/her case.

 

Important – Under the new law, there is absolutely no waiver for this ground of deportation. Even marriage by the alien to a U.S. citizen or being a parent of a U.S. citizen, will not amount to grounds for forgiveness, to an individual who falsely represents him/herself to be a U.S. citizen.

 

DEPORTATION RELIEFS

 

When an Immigration Judge finds that an alien is illegally present in the United States, it does not necessarily follow that he/she will be deported. There are certain forms of relief that may still be available.

 

During questioning by an USCIS officer, an alien has the following rights:

  1. to know the reason for being questioned or detained
  2. to remain silent
  3. to an attorney at his/her own expense
  4. to refuse a search of your home, unless there is an official search warrant
  5. to request release from custody on bond or personal recognizance (there are certain exceptions)

 

 

During the hearing by an Immigration Judge, an alien may request for

  1. Suspension of Deportation or Cancellation of Removal

For this, the alien must

  1. have been continuously residing in the U.S. for at least ten years
  2. be of good moral character
  3. his/her removal would cause ‘exceptional and extremely unusual hardship’ to his/her U.S. citizen or LPR spouse, parent or child

 

  1. Adjustment of Status

While under an order for deportation, an alien who is the parent, spouse, widow or child of a U.S. citizen may be eligible to apply for this relief to the judge, i.e., request an adjustment of status to that of legal permanent resident.

 

  1. Asylum

An alien who has a well-founded fear of persecution if he/she returns to his/her home country may apply for asylum if his/her fear is based on any of the following grounds:

  1. Political opinion
  2. Religious Belief
  3. Nationality
  4. Race
  5. Membership in a particular social group

Asylum must be applied for within the first year of entry into the United States. If asylum is granted, the alien may apply for permanent resident status after one year.

Withholding of deportation is similar to asylum, but does not permit the alien to apply for permanent residence, and only prohibits the INS from deporting the alien to one particular country.

 

  1. Legalization and Registry

An illegal alien who qualifies for legalization or ‘amnesty’ by the INS will have the legal right to remain in the United States and the pending deportation hearing will be closed.

Registry is another means of attaining legal permanent residence in the U.S. It is available to aliens who have resided continuously in the U.S. since prior to January 1, 1972, who are persons of good moral character, who are not deportable on certain aggravated grounds and who are not eligible for citizenship.

 

  1. Voluntary Departure

Finally, if there is no other relief from deportation, most aliens are eligible for, and should apply for, voluntary departure from the United States. This avoids both the stigma and the legal impediments to return to the United States imposed by deportation.

 

Voluntary departure is available to aliens who are not deportable on aggravated grounds, who have the means to pay for their departure from the U.S., who agree to depart within a period of time granted by the Immigration Judge, and who can establish good moral character during the previous five-year period. Failure to leave within the specified time automatically reinstates the order of deportation. However, a request for extension of the date of voluntary departure may be made to the INS District Director.

 

NOTE: It is always better to avoid formal deportation/removal when possible, because it will bar your legal re-entry into the United States for up to five years or more, unless you are able to obtain prior special permission from the U.S. Attorney General. Such illegal re-entry may subject you to a felony criminal prosecution.

 

All forms of relief from deportation, except withholding of deportation, may be granted at the discretion of an Immigration Judge. Final orders of an Immigration Judge may be appealed to the Board of Immigration Appeals, and in certain cases to the appropriate U.S. Court of Appeals.

The alien has the right to remain in the United States while his/her appeal is pending.

 

Latest News

The USCIS has published a Fact Sheet on Mandatory Surrender Proposed for Persons with Final Removal Orders. Click here to read further details.

 

INS InfoLinks :

 

  1. Interim Rule Published to Implement Statutory Limitations on Suspension of Deportation and Cancellation of Removal
  2. Unified Removal Proceedings

 

 

The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between Jethmalani & Nallaseth and the viewer.