Deportation (also called "removal") occurs when the federal government formally removes an alien from the United States for violations of immigration or criminal laws. Once deported, an alien may lose the right to ever return to the United States, even as a visitor.
Removal is a legal proceeding, and an alien who is subject to this procedure has legal rights prior to being removed from the country, including the right to challenge the removal itself on procedural or constitutional grounds. Following is a discussion of the removal process.
The most common type of proceeding before EOIR is the removal hearing. Removal hearings are conducted to determine whether certain aliens are subject to removal from the country. The distinction between exclusion and deportation proceedings has been eliminated, and aliens subject to removal from the United States are now all placed in removal proceedings. Thus, the removal proceeding is now generally the sole procedure for determining whether an alien is inadmissible, deportable, or eligible for relief from removal.
In these hearings, the agency that is responsible for enforcing federal immigration laws, the Department of Homeland Security (DHS), charges and must prove that an alien is in the United States unlawfully and should be removed. EOIR does not have jurisdiction over an alien's case unless DHS files charging documents with EOIR.
If DHS charges an alien with an immigration law violation, it serves the alien with a charging document, known as a Notice to Appear, ordering the individual to appear before an immigration judge. The Notice to Appear also is filed with the immigration court having jurisdiction over the alien, and advises the alien of the nature of the proceedings, the alleged immigration law violations, the privilege of being represented by an attorney at no expense to the government, and the consequences of failing to appear at scheduled hearings.
Generally, immigration court proceedings involve an initial “master calendar” hearing and, subsequently, an “individual” hearing. During the master calendar hearing, the immigration judge ensures that the alien understands the immigration violation charges and provides the alien information on available “pro bono” (free of charge) or low-cost legal representation resources in the area. During the individual hearing, the merits of the case are discussed before the immigration judge by the alien, or the alien's legal representative, and the DHS attorney who is prosecuting the case. In most cases, the immigration judge issues an oral decision at the conclusion of the individual hearing.
Once a case is completed, if either the alien or DHS disagrees with the immigration judge's decision, either party or both parties may appeal the decision to the BIA.
If the alien disagrees with the BIA's ruling, the alien may file an appeal in the federal court system. If DHS disagrees with the BIA's ruling, in rare instances, the case may be “certified” (referred) to the Attorney General for review.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) mandates that aliens who arrive at a U.S. port of entry without travel documents or present fraudulent documents must be detained and placed in expedited removal.
The expedited removal process allows an immigration inspector to remove from the United States certain classes of aliens who are inadmissible. However, no aliens can be expeditiously removed from the United States until they are read a sworn statement and acknowledge that they understand it, and are questioned whether they have a concern or fear of being returned to their home country.
Aliens who express a fear of persecution during the expedited removal process receive a “credible fear” interview with an asylum officer from the U.S. Citizenship and Immigration Services in DHS.
Aliens who are not found to have a credible fear of persecution by an asylum officer may request that an immigration judge review the asylum officer's negative determination prior to their removal from the country. This review must be concluded within 24 hours whenever possible, but in no case later than 7 days after the initial determination by the asylum officer. The review is limited solely to whether the aliens have a credible fear of persecution.
Those persons found to have a credible fear are referred to EOIR for removal proceedings in which they may apply for asylum before an immigration judge.
Bond Redetermination Hearings
An Immigration Judge conducts a bond redetermination hearing for aliens who are in DHS detention. Eligible aliens can ask an immigration judge to reduce the amount of bond set by DHS, or to set a bond if DHS has determined that no bond should be set. These hearings are generally informal and are not a part of the removal proceedings. The decision can be appealed by either the alien or by DHS to the BIA.
An Immigration Judge conducts a rescission hearing to determine whether a lawful permanent resident (LPR) should have his or her residency status rescined because he or she was not entitled to it when it was granted.
An Immigration Judge conducts a withholding-only hearing to determine whether an alien who has been ordered removed is eligible for withholding of removal under the law or the Convention Against Torture (CAT)
An asylum-only hearing applies to an individual who is denied a removal hearing under the law. These individuals include crewmen, stowaways, Visa Waiver Pilot Program beneficiaries, and those ordered removed from the United States on security grounds. An asylum-only hearing will be used to determine whether certain aliens who are not entitled to a removal hearing but claim a well-founded fear of persecution in their home country are eligible for asylum. In normal circumstances, asylum are heard by Immigration Judges during the course of a removal hearing.
Credible Fear Review
If an alien seeks to enter the United States without documents, or with fraudulent documents, and expresses a fear of persecution or an intention to apply for asylum, an DHS asylum officer will conduct a credible fear interview. An alien will demonstrate a credible fear of persecution if he or she shows that he or she could establish an asylum claim, or a claim based on withholding of removal or under the CAT. If an asylum officer decides that an alien does not possess a credible fear of persecution, an Immigration Judge will review that determination. If the Immigration Judge finds that the alien has a credible fear of persecution, the alien may apply for asylum, withholding of removal, or withholding under the CAT.
Reasonable Fear Review
If an alien who is ordered removed during expedited removal hearing expresses a fear of returning to his or her country, he or she must be given a reasonable fear interview by an asylum officer. Similar to the credible fear assessment, the asylum officer will determine whether the alien has a reasonable fear of persecution, or torture, based on a reasonable possibility that he or she will be persecuted due to his or her race, religion, nationality, membership in a particular social group, or political opinion, or due to a reasonable possibility that he or she would be tortured in the country of removal. If the interviewing officer determines that the alien would be tortured in the country of removal, he or she will refer the alien for a hearing before an Immigration Judge. This hearing is known as a withholding-only hearing, given that the Immigration Judge will adjudicate only the issue of withholding of removal.
Claimed Status Review
If an alien in expedited removal claims under oath to be a U.S. citizen, or to have been lawfully admitted for permanent residence, or to have been admitted as a refugee, or to have been granted asylum, he or she can obtain a review of that claim by an Immigration Judge when DHS determines that the alien has no such claim.
In Absentia Hearing
If an aliendoes not appear for a scheduled hearing, he or she may be ordered removed in absentia (being absent). The Immigration Judge will order an alien removed in absentia if DHS can demonstrate that the alien is removable, and he or she was served with a written notice to appear for the hearing, including an appraisal of the consequences of being absent for a hearing. In absentia hearings are not considered a distinct type of immigration proceeding.
Relief from Removal - Discretionary Relief
While almost all hearings deal with the issue of removal from the United States, the outcome of many hearings depends on the availability of relief from removal, if any. Immigration law provides relief from removal to aliens who meet specific eligibility criteria. In most removal proceedings, aliens concede that they are removable, but then apply for one or more forms of relief from removal. In such cases, the alien has the burden of proving that he or she is eligible for relief under the law, and usually that he or she deserves such relief as an exercise of discretion.
Voluntary Departure - is the most common form of relief from removal and may be granted by Immigration Judges, as well as the DHS. Voluntary departure avoids the stigma of formal removal by allowing an otherwise removable alien to depart the United States at his or her own personal expense and return to his or her home country, or another country if the individual can secure an entry there. Immigration Judges will provide aliens information on the availability if this form of relief when taking pleadings. It is important to note that aliens granted voluntary departure must depart within the time specified by the Immigration Judge. Although an Immigration Judge has the discretion to set a shorter deadline, aliens granted voluntary departure prior to the completion of removal proceedings must depart within 120 days, and those granted such relief at the conclusion of removal proceedings must depart within 60 days. In addition, in order to avoid being penalized for choosing to appeal a decision rather than depart, the BIA usually will extend an earlier grant of voluntary departure for 30 days. As with other forms of discretionary relief, certain individuals will be found ineligible for voluntary departure, and those granted voluntary departure who fail to depart are subject to fines and a 10-year period of ineligibility for other forms of relief.
Cancellation of Removal - form of discretionary relief available to qualifying lawful permanent residents and qualifying non-permanent residents. For lawful permanent residents, cancellation of removal may be granted if the individual:has been a lawful permanent resident for at least 5 years; has continuously resided in the United States for at least 7 years after having been lawfully admitted; and has not been convicted of an "aggravated felony," a term that is more broadly defined within immigration law than the application of the term "felony" in non-immigration settings.
Cancellation of removal for non-permanent residents may be granted if the alien:has been continuously present for at least 10 years; has been a person of good moral character during that time; has not been convicted of an offence that would make him or her removable; and demonstrates that removal would result in exceptional and extremely unusual hardship to his or her immediate family members (limited to the alien's spouse, parent, or child) who are either U.S. citizens or lawful permanent residents.
It is important to note that different standards are used in determining eligibility for victims of domestic violence.
Adjustment of Status - form of discretionary relief available to change an alien's status from a non-immigrant to a lawful permanent resident. Aliens who have been previously admitted into the United States can apply to DHS for adjustment of status, while aliens in removal proceedings apply before an Immigration Judge. Several conditions must be met, including that the alien is admissible for permanent residence and an immigrant visa is immediately available at the time of application. Aliens who qualify for visas allowing an adjustment of status are often petitioned for by a spouse (or another family member) or an employer. Certain individuals, including criminals and aliens who fail to appear for proceedings or fail to depart after a grant of voluntary departure, and those who were ordered removed may be ineligible for adjustment of status.
Asylum and Refugee Status. Asylum seekers and refugees can gain legal residency status in the United States if they fulfill certain requirements under immigration law. The main differences between the two forms of relief are: Asylum seekers are already on U.S. soil, while refugees are outside of the United States; and Refugees seek help from the United Nations, while asylum applicants submit their petition to the U.S. government.
Although federal laws and regulations govern the asylum and refugee process, each request is determined on a case-by-case basis, meaning that an individual's application as presented to an immigration law officer is the most crucial factor in obtaining the relief sought -- asylum or refugee status. Following is a discussion of asylum and refugee status under immigration law.
Asylum is a type of protection that allows individuals who are already in the United States to remain here. In order to obtain asylum, an applicant must demonstrate to the United States government that he or she fears persecution in their native country based upon one or more of the following: Race, Religion, Nationality, Membership in a social group, or Political opinion.
Asylum Procedure and Limitations. An individual seeking asylum applies directly to the United States government. U.S. law generally requires that an application for asylum be filed within one year of the person's arrival in the United States, although there are very limited exceptions. The procedure and evidence that is required in an asylum application is significantly more complex than for individuals seeking refugee status before the U.N. In addition, there are dangers of applicants being held in detention while their request is being considered, if they have entered the United States illegally. Finally, asylum applicants cannot seek employment authorization at the same time they apply for asylum. They need to wait for an initial 150 days prior to application.
An alien may be ineligible for asylum under certain circumstances, including having failed to file an asylum application within an alien's first year of arrival in the United States, being convicted of an aggravated felony, or having been found to be a danger to national security.
Convention Against Torture (CAT) protection relates to the obligations of the United States under Article 3 of the United Nations Convention Against Torture––an international treaty provision designed to protect persons from being returned to countries where they face torture. Under Article 3, the United States agrees not to “expel, return, or extradite” a person to another country where he or she would be tortured.
CAT provides two separate types of protection: “withholding of removal” and “deferral of removal.” Both provisions ensure that a person is not returned to face torture, but they do allow the government to remove the person to a third country where he or she would not be tortured.
Withholding of removal prohibits an alien's return to a specific country. Withholding of removal can be terminated only if the case is re-opened and the DHS establishes that the alien is not likely to be tortured in that country.
Deferral of removal is a more temporary form of protection. Deferral of removal is granted to aliens who likely would face torture but who are ineligible for withholding of removal––for example, certain criminals and persecutors. Deferral of removal is more easily and quickly terminated if the individual no longer is likely to be tortured in the country of removal. It also allows an individual who is subject to detention to be detained.
CAT protection is not the same as asylum. The major differences are:Individuals granted asylum can file for permanent resident status after 1 year and an asylee's immediate family members may be granted the same status. CAT protection does not grant either permanent resident status or the ability to bring family members to the United States. Persons who claim asylum must establish a “well-founded” fear of persecution, based on one of five grounds: race, religion, nationality, membership in a social group, or political opinion. CAT does not require that the torture be feared on account of those five grounds, but applicants are required to establish that it is “more likely than not” that they would be tortured if removed to a specific country. Not all types of harm that qualify as persecution necessarily constitute torture. For those who meet the respective standards, a grant of asylum is discretionary while CAT protection is mandatory. Persons with serious criminal or terrorist backgrounds, as well as persecutors, cannot be granted asylum. Under CAT, such persons will not be returned to torture, although they may be subject to detention where appropriate.
If the applicant is not found eligible for asylum, the immigration judge determines whether the applicant is eligible for any other forms of relief from removal and, if not, orders the individual removed from the United States.
Appeals. Within 30 days of receiving a denial decision from an immigration judge, the applicant may appeal to the BIA. If the BIA affirms the immigration judge's denial decision, the applicant may file an appeal with the federal court system.