Deportation
If you or someone you know is facing deportation it is important to consult an experienced attorney in both criminal defense and immigration issues. We have experience representing non-United States Citizens in both criminal proceedings and immigration proceedings. We are familiar with the immigration consequences of criminal convictions.
We represent our clients in Criminal Court Proceedings, Immigration Court Proceedings, United States Citizenship and Immigration Services (USCIS) and the Department of State (DOS) relating to visa issues and necessary waivers.
When an Immigration Judge has found that an alien is illegally present in the United States, it does not necessarily follow that he will be deported. The Immigration and Nationality Act provides many types of relief from removal. Chief among these are (1) waivers of excludability and deportability; (2) cancellation of removal for permanent residents; (3) cancellation of removal for non-permanent residents; (4) suspension of deportation; (5) adjustment of status to permanent residence; (5) asylum and withholding of deportation; (6) legalization and registry and, if all else fails, (7) voluntary departure.
How can you fight a removal case?
In removal cases, different rules apply, depending on when and where you were caught by immigration officers. If you were caught at the border when you were trying to cross into the country (or if you entered the country illegally and cannot prove that you have been here for more than two years) you can be charged as an arriving alien. That classification means that you can be charged with removal based on the grounds of inadmissibility discussed above. It may also affect your eligibility for release from detention on bond and your eligibility to apply to the immigration judge for permission to stay in the United States.
What might make you deportable?
People who are arrested after they have been in the United States for a while are usually charged with a ground of deportability. The list of reasons that make someone deportable is very similar to the list of grounds of inadmissibility. But because the lists are slightly different, sometimes someone might be deportable but not inadmissible, or the other way around inadmissible but not deportable. If you are deportable but not inadmissible, you might be able to immigrate (or re-immigrate) in immigration court to solve your problem with deportability. If you are inadmissible but not deportable, the government might not be able to deport you, even though it would be able to keep you from coming back to the country if you ever left. You should consult an immigration attorney with experience in these types of issues to advise you about the options in your case.
How do removal cases with the immigration judge work?
The judge has two basic decisions to make in every immigration removal case. First he has to decide if the government is right about the reasons it wants to remove you from the country. For example, the government might want to deport you because you have a criminal record; but not all crimes make you deportable. Sometimes the government even tries to deport U.S. citizens by accident. You can tell your side of the story to the judge if you think that the government’s reason for wanting to deport you is wrong. So the first part of your case is having the judge decide if there is any reason to deport you.
What can you do to stay in the United States if you are deportable?
If the judge decides that you are deportable, then he needs to move on to the second part of the case and decide if there is any way for you to get relief from deportation. There are different kinds of relief from deportation that the judge could give you. If you would be eligible to apply for an immigrant visa or green card through the regular processes, you might also be able to apply to the immigration judge for a green card or reapply for a green card, if you already have one. If you are afraid for your life or safety in your home country for certain reasons, you might be able to ask the judge for asylum. If you have been in the United States for a long time, you might also be eligible to apply for cancellation of removal.
You might be eligible for one of these types of relief from deportation, or you might be able to apply for all of them. If it looks like you qualify for some type of relief from removal, the judge will give you a chance to file an application for that type of relief. There are different application forms and different documents that you will need to give the judge for each type of relief you want him to consider.
Who can help with your removal case?
It is very important to document your case completely for the judge; it is difficult to win a case on your testimony alone. An experienced immigration attorney will know what the judge is looking for and will help you put together all the documents that could be important for the judge to make his decision.
A good attorney will also help prepare you and your witnesses for what to expect when you testify in court. Most people are nervous when they testify in court; and nervous people do not always make the best witnesses. That is why it is important for witnesses to know what to expect. Proper preparation will help them keep their composure and tell the judge what he needs to know.
What happens when your removal case is finished?
In the end, the judge will decide whether you get to stay in the country or whether you must go. If you are allowed to stay, you will be given a green card or some sort of protected status, like asylum. If you must leave the country, the judge might allow you to leave on your own which is called a voluntary departure or he might order that the government send you back to your country a deportation. The difference between voluntary departure and deportation can be important in some cases. If you are deported, you will not be allowed to get a visa to return to the United States for a long time. On the other hand, a voluntary departure will not necessarily affect your ability to get a new visa to come back to the country legally in the future. Your eligibility to return to the United States legally after a voluntary departure involves many technical provisions of law, and you will need to consult an experienced immigration attorney.
Deportation Waivers AFTER Removal from the US
If you have been deported or removed from the United States, you may need a deportation waiver in order to be able to re-enter. Whether or not you need a deportation waiver depends on how and how long ago you were deported. A deportation waiver is needed for both non-immigrants, who seek to enter the US to visit for temporary employment, and immigrants, who seek to live and work permanently in the United States with a green card. Applicants who are also inadmissible under other grounds of inadmissibility (such as a prior visa overstay) will likely need to submit the deportation waiver along with an inadmissibility waiver.
Length of deportation bars
Once a foreign national has been deported or removed from the United States, he or she will be unable to return without a deportation waiver for 5, 10 or 20 years depending on the circumstances surrounding the deportation. Once that time limit has expired, however, the applicant should not need to file a deportation waiver in order to re-enter the US.
- 5 year deportation bar Pursuant to section 212(a)(9)(A)(i) of the Immigration & Nationality Act (INA), those who were deported from the United States either upon arrival (expedited removal) via section 235(b)(1) or at the end of deportation proceedings that were initiated upon arrival must apply for a deportation waiver in order to enter the US for five years after the deportation;
- 10 year deportation bar Pursuant to section 212 (a)(9)(A)(ii), those who were deported after the end of deportation proceedings initiated after arrival or left when a removal order was still outstanding, and wants to re-enter, will need to apply for a deportation waiver for 10 years after the deportation;
- 20 year deportation bar - Notwithstanding the above, a foreign national who has been deported more than once must get a deportation waiver for 20 years after the deportation.
Deportation waiver for green card applicants (intending immigrants) using form I-212
Whether applying for an immigrant visa at a US consular post abroad or attempting to obtain a green card in the US using the adjustment of status process, certain applicants who have previously been deported will need a deportation waiver. For immigrant visa applicants, the deportation waiver is filed on form I-212 (Application for Permission to Re-Apply for Admission into the United States after Deportation or Removal). Unlike with 601 waivers (or hardship waivers), where the applicant must usually show that failure to grant the waiver would result in an extreme hardship to a US citizen or lawful permanent resident spouse or parent, whether or not to grant the I-212 deportation waiver is solely at the discretion of the immigration officer. The applicant need not be related to anyone in the US and need not establish that a denial would result in hardship. Instead, an applicant’s waiver attorney must create a waiver package that convinces the immigration official that the waiver should be granted.
Deportation waiver for non-immigrant applicants (visitors or temporary workers) under 212(d)(3)
Non-immigrant visa applicants who have a prior deportation on their record must apply for permission to re-enter pursuant to the schedule outlined above. Unlike immigrant visa applicants, however, most non-immigrant applicants file the deportation waiver using the information 212(d)(3) waiver process. The 212(d)(3) waiver process is used by non-immigrants to waive almost all grounds of inadmissibility. Like with the I-212 waiver, there is no structured format for approval of a waiver. Instead, the adjudicating officer determines whether or not the waiver should be granted as a matter of discretion. Unlike the I-212 waiver, however, non-immigrant visa applicants who are applying for deportation waivers must also prove to the immigration official that they have no immigrant intent. Because this person may already have a history of staying in the United States for more than just brief periods of time, preparation of a 212(d)(3) deportation waiver requires the waiver attorney to focus on the applicant’s ties to the home country to prove that he or she will return home once the temporary visa has expired.
Voluntary Departure
Voluntary Departure is now a formalized administrative remedy with severe limitations and is not to be granted by Department of Homeland Security (DHS) offices unless specifically requested. If it appears that removal proceedings cannot otherwise be avoided, before removal proceedings are commenced with the filing of the NTA, the alien may request the DHS district director (or local office) to grant voluntary departure, which means that DHS notifies the alien of a specific date (not a time frame) by which the alien may leave the country without being removed.
To be eligible:
- The alien must not be deportable as an aggravated felon or terrorist.
- Voluntary departure is not available to arriving aliens.
- An alien who is allowed voluntary departure after being found to have entered without inspection may not receive voluntary departure again.
- Non-immigrant visas – click here
- Immigrant visas click here
- Naturalization & Citizenship click here
- Consulates click here