Who Can be DeporteD?
Until an immigrant becomes a US citizen, they are at risk of being deported, whether on the basis of being declared inadmissible or by meeting one of the grounds for deportation. Several different factors may trigger deportation proceedings, including a conviction for:
- Domestic violence
- Drug crimes
- Gun crimes
- Crimes of moral turpitude
- Aggravated felonies
In addition, there are several grounds of deportation that do not involve any type of criminal conviction, such as:
- Remaining in the US on an expired visa
- Fraud in an immigration application or other paperwork
- Illegal border crossing
- High-speed flight from an immigration checkpoint
In November of 2014, President Obama announced a new immigration enforcement policy that prioritizes the deportation of criminals and new arrivals. These are the categories of people who are now considered a deportation priority, and are, therefore, at greatest risk of being apprehended and placed in deportation proceedings:
- Priority 1: Focuses on people who are “threats to national security, border security, and public safety.” This includes: persons suspected of having involvement with gangs, spies, or terrorists; persons convicted of a felony (defined under state law), or an “aggravated felony” (defined by federal law); and persons apprehended at the borders while attempting to enter unlawfully.
- Priority 2: Focuses on people who are “misdemeanants and new immigration violators.” This includes: persons convicted over three or more misdemeanors, not including minor traffic offenses and state convictions where immigration status is an element; visa “abusers"; persons without status who have not been continuously present in the U.S. since January 1, 2014; and persons with convictions for a significant misdemeanor. A “significant misdemeanor” is defined as an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, driving under the influence, or any misdemeanor for which the person was sentenced to serve 90 days or more in jail.
- Priority 3: Focuses on people who have “other immigration violations.” This priority only names “those who have been issued a final order of removal on or after January 1, 2014."
There are several types of defenses that can be presented to an immigration judge in deportation proceedings, including, but not limited to:
Cancellation of Removal for Lawful Permanent Residents
Individuals who have a green card can attempt to keep their status if they have had a green card for five years, lived in the US for seven years, have not been convicted of an aggravated felony, and as a matter of discretion, deserve to win their case.
Cancellation of Removal for Non-Lawful Permanent Residents
Individuals who have resided in the US illegally for ten years or more, are of good moral character, and have a US citizen or lawful permanent resident spouse, parent, or child who would suffer exceptional hardship if an order of deportation is issued, can fight to get a green card to stay in the US.
Adjustment of Status
Individuals who are eligible to get their green card through sponsorship by a family member or employer can fight to get a green card to stay in the US.
Asylum/Withholding of Removal
For individuals who fear persecution in their home country, asylum and withholding of removal are options. In order to qualify for asylum or withholding of removal, a foreign national must be able to prove past persecution, or well-founded fear of future persecution based on race, nationality, religious beliefs, political opinion, or membership in a particular social group. The main difference between asylum and withholding of removal is that an individual granted asylum can apply for a green card after one year, but those granted withholding of removal only get a work permit, and cannot apply for a green card regardless of how long they have had the withholding of removal status.
An individual may request to depart the US voluntarily to avoid deportation, and pursue legal immigration options from his or her home country.
Prosecutorial discretion refers to the power that ICE has to influence a deportation case. ICE can exercise its prosecutorial discretion in many different ways, including agreeing to terminate deportation proceedings in cases where it is determined that the immigrant is not a deportation priority.
Certain classes of immigrants are statutorily ineligible for release from detention. These people subject to mandatory detention are not entitled to a bond hearing. That is, the Immigration Judge does not have jurisdiction to release them, so if ICE declines to release them, they must remain in detention while removal proceedings are pending against them.
If the immigrant is not subject to mandatory detention, ICE will make the initial determination as to whether the immigrant will be released, and if so, whether they will be released on bond or on their own recognizance. If ICE determines that the immigrant will not be released, or sets a very high bond for release, the immigrant can request review of ICE’s decision by an Immigration Judge.
Appealing or Reopening an Immigration Court Decision
If an Immigration Judge denies a request for relief from deportation, the immigrant may file a motion for the judge to reconsider the decision, or may appeal the decision to the BIA. In either case, the immigrant must show that the Judge made a material error of fact or law. Additionally, the immigrant may file a motion to reopen when new facts or evidence emerge that make the immigrant eligible for relief. A motion to reopen is most commonly necessary when the immigrant fails to appear for an Immigration Court hearing, and is ordered deported "in absentia" (while absent).