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Deportation and Removal Process
 

Under the Immigration and Nationality Act ("INA"), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA"), "removal proceedings" are used to determine whether a non-U.S. citizen, or "alien," should be removed, that is, expelled from the U.S.  The removal process is complicated and has many steps, from the initial notification that you're being deported all the way to the final order of removal.

 

How the Deportation and Removal Process Starts

Usually, the removal process begins with the Department of Homeland Security issuing you a Notice to Appear ("NTA").  This document states your name and the country in which you were born, orders you to appear before an Immigration Judge, and gives you other information, such as:
  • Why you're being ordered to appear before the Immigration Judge;
  • How you allegedly broke the law;
  • Your right to have an attorney (whom you'll have to hire and pay for yourself); and
  • The consequences of your failure to appear at the hearing.

 

If the Immigration Judge determines that you can be deported and that the information in the Notice to Appear is correct, you can then apply for relief from removal.  If you're eligible for any such relief, another hearing will be held.  If you're not eligible for any relief from removal, the Immigration Judge will sign an order for your deportation.

 

 

 

 

 
Relief from Removal

 

There are several types of relief from removal that will allow you to remain in the United States.  Some of the most common forms of relief are:

  • Cancellation of Removal;

  • Adjustment of Status; and

  • Asylum.

 

Cancellation of Removal

 

Cancellation of removal is a process whereby your removal is cancelled or stopped by the Immigration Judge.  The availability of this relief is different for a lawful permanent resident (LPR), such as an alien with a "green card," than for a non-lawful permanent resident (non-LPR). 

 

If you're a Lawful Permanent Resident ("green card holder"), you may be eligible for cancellation of removal if:

  • You've lived in the U.S. for 7 years straight after you were admitted to the country;

  • You've been an LPR for at least 5 years;

  • You've never been convicted of an aggravated felony;

  • You're not a terrorist; and

  • You've never been granted cancellation of removal in the past

 

If you are a non-LPR or an undocumented alien, you may still be eligible for cancellation of removal if:

  • You've been in the U.S. continuously for at least 10 years;

  • During that 10-year period, you were not served with an Notice To Appear;

  • During that 10-year period, you did not commit certain crimes;

  • During that 10-year period, you were a person of "Good Moral Character;" and

  • You show that your removal would result in exceptional and extremely unusual hardship to your spouse, parent or child, and that your spouse, parent and/or child is either a U.S. citizen or a Lawful Permanent Resident.

 

 

Adjustment of Status

 

Adjustment of status is when an alien changes his or her status from non-immigrant to lawful permanent resident. In order to qualify for this relief, several conditions must be met, including:

  • You must be admissible for permanent residence, that is, you're not inadmissible under the INA; and
  •  
    An immigrant visa is immediately available for you at the time you apply for an adjustment of status. Aliens who qualify for visas allowing an adjustment of status often have petitions that were filed by a spouse or another immediate family member who is a U.S. citizen or Lawful Permanent Resident (or perhaps even an employer).

     

You are not eligible for adjustment of status in certain circumstances, including:

  • You failed to appear at the removal proceedings after being served with a Notice To Appear;
  • You entered the U.S. illegally, that is, you were not interviewed by an immigration officer at the time you crossed the border; or
  • You violated the restrictions on your temporary visa, such as by staying in the U.S. beyond the expiration date of your visa status.

     

     

Asylum

 

Asylum can be granted to an alien who qualifies as a "refugee."  To qualify as a refugee, you would generally have to show an inability to return to your native country because of past persecution of a well-founded fear of future persecution based upon your race, religion, nationality, or membership in a particular social group or political movement.  However, you're generally not eligible for asylum if:

  • You did not file an asylum application within the first year after you entered the U.S.;
  • You have a conviction for an aggravated felony; or
  • The Department of Homeland Security considers you to be a danger to national security.