Guide to Deportation and Removal
Immigration deportation is now referred to as "removal". When immigration laws are broken, or when certain criminal charges are brought against an immigrant, the immigrant faces deportation, or removal. U.S. citizens are generally protected from deportation, although if a naturalized U.S. citizen is found guilty of establishing citizenship through fraudulent means, he or she can be deported and will not be allowed back in the U.S. at any time in the future.
Even minor offense which would have little punishment for a U.S. citizen can have devastating impact on an immigrant, especially an immigrant who does not have permanent resident status. Certain heinous crimes though, like rape and murder, will result in removal (or deportation) of an immigrant who does have permanent resident status. The most common crimes that lead to removal are drug-related offenses. Any immigrant caught selling drugs will likely be removed. Using or selling drugs such as cocaine or marijuana can result in removal.
Deportation proceedings are now known as removal proceedings. Removal proceedings are usually initiated by the Department of Homeland Security. Anyone accused of violating immigration laws or convicted of criminal charges may be placed in removal proceedings. For example, under federal law (8 U.S.C. § 1325), anyone who enters the Unites States illegally is committing a misdemeanor offense and can be sentenced to a fine or six months in prison. The federal law accompanying § 1325 is 8 U.S.C. § 1326 which makes the offense of reentering, or attempting to reenter the United States after being removed or deported a felony offense. A felony offense is ground for removal and for being inadmissible in the future.
Once removal proceedings are initiated, the immigrant may be detained while awaiting a hearing. The immigrant may request a cancellation of removal hearing to present the reasons why he should not be removed from the United States. An immigrant is NOT entitled to free legal representation if he cannot afford an attorney, as a U.S. citizen would. Even an immigrant faced with criminal charges will have to pay for legal representation or attend the hearing without a lawyer. Depending on the reason for the removal of the immigrant from the United States, the immigrant will not be allowed back into the United States for a number of years. Some crimes will make an immigrant inadmissible at any time in the future.
Many aliens are not eligible for cancellation of removal. Some examples of people who cannot apply for cancellation of removal are as follows:
- Anyone suspected in participating in espionage, activities to overthrow the U.S. government, and in terrorism
- Anyone who has participated in persecution of others
- Anyone convicted of morally bad crimes such as drug offenses
- Anyone convicted of certain immigration offenses including document fraud
- Anyone convicted of an aggravated felony
In order to qualify for cancellation of removal, an alien must show:
- He has been a person of good moral character for at least the last ten years. If he has committed any serious crime in the U.S., it must have been more than ten years prior to the application for cancellation of removal. Some serious crimes will make an alien ineligible for cancellation of removal regardless of time.
- He must also prove he has remained in the U.S. for the past ten years. A copy of the passport and the I-94 that was attached to it when he first arrived in the United States will serve as proof as his time spent in the U.S. He can also submit paystubs, housing payments, bills to your address, etc. as proof of residence for ten years.
- He must prove that if he were removed he would suffer hardship. The decision to cancel removal is entirely up to an immigration judge. The alien and his attorney will have to prove to the judge that the hardship is too great for the alien to be faced with removal.
Even if an immigration judge rules in your favor and cancels removal, you could still face a delay. Only 4,000 people each year are granted formal cancellation of removal. Similar to all other green card processes with numerical caps, if the cap of 4,000 people has been reached, you will have to wait until your visa number is reached before lawful permanent residency will be granted.
After an immigrant goes through the deportation (removal) hearing process, the removal will either be cancelled, or he will be ordered to leave the country. Some people who are ordered to leave the country never show up for their hearing. Some people who are ordered to leave the U.S. disappear and officials are not able to locate them in order to enforce the deportation (removal) orders.
All the individuals who are ordered to leave the U.S., but who officials have not found, or who have not left the U.S. are put on the deportation list. The deportation list includes the names of all people who are in violation of immigration laws and orders to leave the U.S.
In recent years, there has been a targeted crackdown on finding anyone on the list who might have ties to terrorism. Some argue it involves racial profiling, but proponents argue these are immigrants who have been ordered to leave the country due to criminal convictions and they are not entitled to any protections of any kind.
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