Deportation, or removal, is the formal process by which a non-citizen is forced to leave the United States for violating criminal or immigration laws. Removal is ordered by an immigration judge and enforced by the Department of Homeland Security's Immigration and Customs Enforcement (ICE). Prior to removal, the non-citizen is given an opportunity to provide evidence at a formal hearing and, if eligible, request relief from removal.
A criminal or immigration law violation by a non-citizen can initiate deportation or removal proceedings. After the offense occurs, the foreign national will receive a Notice To Appear (NTA) from the Department of Homeland Security. The NTA is both the charging document and notification of a formal hearing to determine if the foreign national should be deported from the U.S. The NTA contains the following important information:
- The nature of the proceeding;
- The alleged violations of criminal or immigration law;
- The foreign national's right to an attorney; and
- The consequences of failing to appear at the hearing.
The hearing is conducted in front of an immigration judge, and both the foreign national and United States Citizenship and Immigration Services (USCIS) are allowed to present their case. At the conclusion of the proceeding, the immigration judge will either grant the foreign national relief from removal or order ICE to proceed with removal.
Relief From Removal
There are various kinds of relief from removal a foreign national can request from the immigration judge or pursue after an immigration judge has ordered removal. However, any form of relief that may be granted is at the discretion of the immigration judge or reviewing court. The temporary and permanent forms of relief potentially available to a non-citizen facing deportation include:
- Voluntary departure: a foreign national may be granted a period of time in which to leave the United States at their own personal expense and avoid the possibility of being permanently barred from the United States.
- Cancellation of removal: a lawful permanent resident may be eligible for cancellation of removal if they have been a lawful permanent resident for at least 5 years, continuously resided in the U.S. for more than 7 years after being lawfully admitted, and not been convicted of an aggravated felony (as defined within immigration law). A foreign national that is not a permanent resident may be eligible for cancellation of removal if they have been continuously present in the U.S. for at least 10 years, they have been a person of good moral character, they have not been convicted of a criminal offense that would make them removable, and removal would result in an exceptional and extremely unusual hardship to their immediate family members (spouse, parent, or child) who are either U.S. citizens or lawful permanent residents.
- Asylum: certain foreign nationals that qualify as refugees may be entitled to asylum. The foreign national must prove they are unable to return to their home country because of past persecution or a well-founded fear of future persecution based upon their race, religion, nationality, or membership in a particular group or political opinion.
- Adjustment of status: a foreign national in removal proceedings may be eligible for adjustment of status. An immigration judge has the discretion to grant a foreign national adjustment of status if they are otherwise admissible for permanent residence and an immigrant visa is immediately available.
- Motions to reopen or reconsider: a foreign national whose case has already been heard by an immigration judge may motion to reopen or reconsider the original decision with an immigration judge or the Board of Immigration Appeals (BIA). The motion to reopen or reconsider is intended to give a foreign national an opportunity to present new evidence. A motion to reopen must be filed within 90 days of the removal order and a motion to reconsider must be filed within 30 days.
- Stay of removal: a stay of removal prevents the Department of Homeland Security from enforcing a removal order. This suspension of deportation proceedings is usually temporary. For example, a stay of removal is automatically granted during an appeal. A foreign national may also request a discretionary stay of removal while seeking judicial review, a motion to reopen or a motion to reconsider.
- Administrative appeal: a foreign national (as well as the Department of Homeland Security) may seek review of their case by the BIA within 30 calendar days of the decision. The BIA will dismiss or sustain the appeal, remand the case to the immigration judge or refer the case to the Attorney General for a decision. The BIA's final opinion is binding on immigration judges and the Department of Homeland Security.
- Judicial review: the federal courts also have limited jurisdiction to hear appeals from the BIA. An appeal to the federal courts must be filed within 30 days of the BIA's final determination.
It is highly recommended that any foreign national facing removal proceedings immediately contact an experienced immigration attorney.