Understanding the legal system is the first step to take before fighting a deportation case. Deportation as defined by the United States Citizenship and Immigration Service (USCIS) is “the formal removal of an alien from the United States when the alien has been found eligible for removal for violating immigration laws. The deportation is ordered by an immigration judge without the imposition or contemplation of a punishment (…) “.
One of the mental ghosts that sometimes haunts immigrants in the United States is the idea of being deported. Immigrants with tourist visas, work visas, permanent residents and even naturalized citizens are often victims of this concern, especially because they do not know the details of the process. It is very important to emphasize first that both legal and illegal immigrants can be exposed to deportation. This article is intended to clear those ghosts and clarify this issue.
The rationale that the United States government has to deport an immigrant are several but can be divided into five groups: 1) Entering the country without proper documentation; 2) Violation of the terms of admission or also known as violation of legal status; 3) Immigrants with an extensive list of criminal convictions; 4) Immigrants who are members of prohibited or terrorist organizations; and 5) Immigrants who become public cargo after the first five years of being admitted to the country.
The United States Department of Homeland Security
Since March 2003, the authority that governs federal immigration laws in the United States has been the Department of Homeland Security (DHS). In turn, DHS is made up of three immigration enforcement agencies. These three agencies are the USCIS, the Immigration and Customs Enforcement (ICE), and the Border Patrol (CBP).
The USCIS is in charge of adjudicating immigration benefits such as work permits, political asylum, applications for permanent and temporary visas, and citizenships. USCIS does not have the authority to arrest or detain immigrants. On the other hand, ICE has a responsibility to enforce customs and immigration laws within the United States. ICE is made up of the investigation, detention and deportation units of the former Immigration and Naturalization Service (INS). ICE has the important and delicate responsibilities of investigating and arresting immigrants for violations of immigration laws. The Government’s Main Office of Legal Advisors are also under the tutelage of ICE. The Office of Legal Advisors is made up of prosecutors who represent DHS in immigration deportation cases. Finally, the Border Patrol is responsible for the protection and security of borders and border ports of entry. It is very important to know that these three agencies maintain constant communication, which makes it easier for more and more immigrants to be arrested and involved in deportation proceedings.
Arrests at Ports of Entry
The Border Patrol is in charge of arrests at airports, naval ports, or land ports. If an immigrant is arrested (for violating an immigration law) when he is trying to enter the United States through one of these ports, this person will most likely be detained by the Border Patrol, sometimes for many hours or days. Immigrants arrested at ports of entry are subdivided into two groups: those who are eligible for due process before the Immigration Courts and those who are ineligible for being subject to instant deportation. The former are transferred to ICE to a detention center (immigration jail) and the latter are automatically deported with no opportunity to fight their cases.
Arrests at the End of a Criminal Sentence
An immigrant, documented or undocumented, who is serving a sentence or who is arrested and put in jail awaiting trial (because he is accused of some criminal act) is also at risk of falling under the radar of the authorities and immigration agencies once the sentence or jail time has ended. ICE typically investigates and interrogates immigrants in United States federal and state prisons in order to find violations of immigration laws that warrant deportation. An immigrant who is detained at the end of a sentence or time in jail is taken to a detention center to begin the deportation process.
Unfortunately, many immigrants every day are surprisingly arrested on the streets. For example, it is not uncommon for ICE to arrest immigrants at their homes, in workplaces, or in probation offices. Lately, USCIS has been alerting ICE investigators to people suspected of violating immigration laws, even when they are awaiting their respective residency, asylum or citizenship interviews in the same USCIS buildings. The Border Patrol is also very active arresting people on the streets and interstate buses within the United States. Generally, the Border Patrol arrests immigrants who already have a current deportation order and takes them to government buildings for questioning,
Charges for Immigration Violations: The Order to Appear
Deportation processes officially begin when the immigrant receives a Notice to Appear (NTA). The NTA is nothing more than an order for the immigrant to appear before the Immigration Court to respond to the immigration charges for which he is accused. The NTA is prepared by one of the DHS agencies charged with enforcing immigration laws. For example, if the immigrant is arrested by ICE or by the Border Patrol, the respective agency is in charge of preparing and delivering the NTA to the immigrant. Now, if the immigrant is trying to obtain an immigration benefit (work permits, deferred action, applications for temporary or permanent visas, asylum or citizenship) and this is denied, the USCIS is the agency in charge of preparing and delivering the NTA. .
The NTA includes charges or violations of immigration laws for which the immigrant is charged and the rights of an immigrant during the deportation process. The rights of persons under deportation proceedings are as follows: 1) The accused has the right to be heard by a neutral party, in this case by an immigration judge, if applicable; 2) The accused has the right to a lawyer to represent him in deportation proceedings, as long as this representation has no cost to the government; 3) The defendant has the right to see a list of non-governmental organizations that assist immigrants in deportation proceedings and 4) The defendant has the right to appeal the case both administratively and in federal court.
It is imperative that the immigrant community understand that a person who receives the NTA and who does not appear before the Immigration Court will be deported despite not having attended the hearing. These types of “absent” deportation orders are very difficult to reopen unless the situation that caused the absence is one of force majeure.
Probation after being Arrested by Immigration Authorities
In most cases, immigrants’ greatest fear is of being incarcerated in a detention center. Sometimes the fear of being incarcerated is even greater than the fear of being deported. It is important for the immigrant community in the United States to understand that, although some immigrants may be arrested and placed in deportation proceedings, many of them are protected under the law and eligible to apply for parole and leave the detention centers. detention while their cases are pending in the Immigration Courts. Some other immigrants (generally immigrants with criminal records) do not have the privilege of being able to ask for parole because they are subject to the mandatory detention law, but despite this, they do not lose the right to fight their deportation cases in said Courts.
The Immigration Courts
The Executive Office for Immigration Review (EOIR) is responsible for judging immigration cases. Specifically, under delegated authority of the United States Attorney General, the EOIR interprets and administers federal immigration laws by conducting Immigration Court procedures, appeal reviews, and administrative hearings. The EOIR consists of three components: The Office of the Chief Immigration Judge, who is responsible for managing the numerous Immigration Courts located throughout the United States, where immigration judges judge individual cases; the Board of Immigration Appeals, which primarily conducts appeal reviews of the decisions of the immigration judge; and the Head of Administrative Hearings, that judges employment cases related to immigration. EOIR is committed to providing fair, prompt and uniform application of national immigration laws in all cases.
How to Defend Against Deportation
Deportation definitely has tragic repercussions for any immigrant. Especially if the immigrant is eager to one day be able to return to the United States. In most cases, deportation is punishable by the penalty and stigma of being unable to be admitted to the United States for 10 years after deportation. The first defense in a deportation case is to check whether the immigrant involved already has a deportation order or not. If the immigrant already has a deportation order, what should be done is to carefully check whether there is a legal basis to request a reopening of the case.
If the immigrant does not have a deportation order, the case must be decided before an Immigration Court and to win the case, legal relief or “lifeguards” must be found so that the immigrant is not deported and can stay in the country. There are several ways to get out of a deportation case, but it all depends on the time the immigrant has living in the United States, his family relationships, the way he entered the country, his legal status, and his criminal record. .
For example, legal residents who have continuously lived in the United States for a period of 7 years (and undocumented residents who have continuously lived in the United States for a period of 10 years) may avail themselves of the Cancellation of Deportation law as long as when they meet the requirements of the Immigration and Nationality Act (INA). Some other people may also seek relief through a family petition or adjustment of status or through persecution asylum in their home country.
There are also humanitarian cases in very extreme situations in which the immigrant can ask the Immigration Court to defer the deportation order. But it is important to understand that the Courts approve these humanitarian cases with a drop account because it must be conclusively proved that they are cases of extreme suffering.
Another example of avoiding deportation is voluntary departure whereby an immigrant in deportation proceedings is allowed to leave voluntarily as long as he agrees to their removal. The advantage of voluntary departure is that once out of the United States, the person is not prohibited from reentering the United States for 10 years causing deportation. But it is important to highlight that if the person does not leave voluntarily during the time granted (generally 120 days), the consequences can be fatal, resulting in a fine and a 10-year ban on access to various forms of relief or “lifeguards” in front to deportation.