Kara Sears
Deportation is the process of removing a noncitizen from a country for violating immigration law. Immigrants can be deported for breaking the law, and the laws governing deportation vary by country. In the United States, for example, immigrants with green cards can be deported if they violate U.S. laws, particularly if they are convicted of an aggravated felony or a crime of moral turpitude. Deportation proceedings can be complex, and immigrants facing potential deportation have certain rights, such as the right to an attorney and a hearing before an immigration judge. Understanding these rights and seeking legal assistance are crucial for immigrants facing deportation.
| Characteristics | Values |
|---|---|
| Who can be deported? | Non-citizens, including those with green cards |
| Reasons for deportation | Violating immigration law, criminal acts, visa violations, public safety threats, document fraud, forgery, counterfeiting, voting illegally, espionage, aggravated felony, drug crimes, illegal firearms possession, domestic violence, stalking, child abuse, human trafficking, terrorist activity |
| Rights of immigrants | Right to remain silent, right to consult a lawyer, right to contact consulate, right to a hearing, right to appeal, right to voluntary departure |
| Process of deportation | Detained in a detention center, appear before an immigration judge, removal order carried out by ICE |
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What You'll Learn
Immigrants' rights when facing deportation
Immigrants facing deportation have certain rights, and it is important to know these to ensure fair treatment and protect oneself from potential violations. Here are some key rights to be aware of:
Right to Legal Representation
If you are detained or arrested, you have the right to contact an attorney and have them present during any hearing or interview. You can request a list of free or low-cost legal services if you cannot afford private counsel. It is crucial to not sign any documents or make statements without first consulting a lawyer.
Right to Remain Silent
You have the right to remain silent and refuse to answer questions about your immigration status or other matters. This right applies even if an officer has a warrant. If you choose to exercise this right, clearly state your intention to remain silent or consult a lawyer before answering.
Right to Refuse Searches
Immigration agents or police officers do not have the right to search your person or belongings without your consent or probable cause. You can politely but firmly refuse any search requests.
Right to Challenge Deportation
You have the right to challenge a deportation order by requesting a hearing before an immigration judge. However, this right may be waived if you sign a "Stipulated Removal Order" or choose "voluntary departure," which allows you to leave the country at your own expense before deportation is carried out.
Right to Appeal
If a judge rules that deportation should proceed, you may still have the right to appeal the ruling. You can seek legal assistance from nonprofit legal organizations or contact a USCIS office for guidance on filing an appeal.
Right to Consular Notification
If you are detained by ICE, you have the right to contact your consulate or request that an officer notify the consulate of your detention. This can help ensure that your government is aware of your situation and can provide assistance.
It is important to remember that these rights apply regardless of immigration status, and you should always seek legal advice if you are facing deportation or have concerns about your rights. Knowing and exercising your rights can help protect you from potential violations and ensure that your case is handled fairly and justly.
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Deportation process and how to get help
Deportation is the process of removing a noncitizen from the United States for violating immigration law. The U.S. may detain and deport noncitizens who are held in a detention center before trial or deportation. After a noncitizen is detained, they may appear before a judge in an immigration court during the deportation (removal) process. In some cases, a noncitizen may be subject to expedited removal without attending a hearing.
Know Your Rights
- If detained, you have the right to call a lawyer or your family, and you have the right to be visited by a lawyer in detention.
- You have the right to have your attorney with you at any hearing before an immigration judge.
- If denied release after an immigration violation arrest, ask for a bond hearing before an immigration judge.
- You have the right to a hearing to challenge a deportation order, unless you waive your right to a hearing, sign a "Stipulated Removal Order", or take "voluntary departure".
- You have the right to an attorney, but the government is not required to provide one for you.
- If an immigration agent asks to search you, you have the right to say no. Agents do not have the right to search you or your belongings without your consent or probable cause.
- If you are over 18, carry your papers with you at all times. If you don’t have them, tell the officer that you want to remain silent or consult a lawyer before answering any questions.
- If arrested by the police, you have the right to make a local phone call. The police cannot listen if you call a lawyer.
- If detained by ICE, you have the right to contact your consulate or have an officer inform the consulate of your detention.
- If you are a non-citizen, ask your lawyer about the effect of a criminal conviction or plea on your immigration status.
- Do not discuss your immigration status with anyone but your lawyer.
- If you are in jail, do not answer questions or sign anything before talking to a lawyer.
- If you do not understand or cannot read the papers, tell the officer you need an interpreter.
- If you have a pending asylum application or other immigration court case or appeal, carry evidence of that with you.
Appealing a Deportation Ruling
If a judge rules that deportation should proceed, the U.S. Immigration and Customs Enforcement (ICE) carries out a removal order. Before removal is carried out, you might be able to leave the U.S. at your own expense, which is known as voluntary departure. You may appeal some deportation rulings. Before appealing, find legal services or help from a nonprofit legal organization. For questions about filing an appeal, contact a USCIS office. If you feel your civil rights have been violated, learn how to file a complaint with the Department of Homeland Security.
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What constitutes a deportable crime
Immigrants can be deported for breaking the law. Deportation is the process of removing a noncitizen from the U.S. for violating immigration law. The U.S. may detain and deport noncitizens who are in the country illegally or have committed a crime.
The most common reason for foreign residents to be placed into removal proceedings is the discovery of evidence that they have been convicted of a crime, in particular, what is called a "crime of moral turpitude" or an "aggravated felony." A petty offense, such as shoplifting, simple assault, or a DUI, may not count as a crime of moral turpitude. However, if two or more such offenses are committed within five years of admission to the U.S., they may be considered grounds for deportation.
Other crimes that can lead to deportation include:
- Drug crimes
- Illegal firearms possession or sales
- Espionage
- Domestic violence
- Stalking
- Child abuse or neglect
- Human trafficking
- Terrorist activity
- Voting in violation of any Federal, State, or local law
- Procuring a visa or other documentation by fraud
- Encouraging, inducing, assisting, abetting, or aiding another alien to enter the U.S. illegally
- Failing to appear in court
It is important to note that the definition of what constitutes an "aggravated felony" has expanded since 1988 and can include offenses that many states consider misdemeanors or do not criminalize at all, such as consensual sex between a 21-year-old and a 17-year-old. Additionally, a noncitizen can be deported for a crime they committed many years ago, even if they have already served their sentence.
If an immigrant is facing deportation, they have certain rights, including the right to a hearing to challenge the deportation order and the right to an attorney. They may also be able to leave the U.S. voluntarily at their own expense, known as "voluntary departure."
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Exceptions to deportation
While deportation is a common outcome for immigrants who break the law, there are certain exceptions that may apply in specific circumstances. Here are some scenarios where deportation might not be the immediate outcome:
Asylum Seekers
If an immigrant has a pending asylum application or is seeking asylum, they may not be immediately deported. This is especially relevant if the immigrant expresses fear of returning to their country of origin and passes a fear screening interview, which could allow them to seek asylum. Carrying evidence of a pending asylum application or other relevant documents is crucial.
Administrative Stay of Removal
In certain cases, an administrative stay of removal can be granted, preventing the removal of an immigrant during the period the stay is in effect. This option should not be overlooked, as it can provide temporary relief from deportation.
Waivers and Forms of Relief
Various waivers and forms of relief exist, such as Form I-192 (Application for Advance Permission to Enter as a Nonimmigrant), Form I-601 (Application for Waiver of Grounds of Inadmissibility), and Form I-212 (Application for Permission to Reapply for Admission into the United States After Deportation or Removal). These options can provide alternatives to immediate deportation.
Minors
According to the statute, aliens under the age of 18 do not accrue unlawful presence, and therefore minors may be exempt from deportation based on unlawful presence grounds.
Family Reunification
There is a special rule in the case of family reunification. If an immigrant was physically present in the United States on May 5, 1988, and is seeking admission as an immediate relative, they may be exempt from deportation if they have only encouraged, induced, assisted, abetted, or aided their spouse, parent, son, or daughter to enter the United States in violation of the law.
Country of Deportation
In some cases, the intended country of deportation may impact the outcome. For example, a federal judge blocked the deportation of Asian migrants to Libya, as there were concerns about the migrants' safety and the lack of coordination with the Libyan government.
It is important to note that these exceptions may have specific requirements and limitations, and each case is unique. Seeking legal advice from immigration lawyers or consulting official government sources is crucial to understanding the specific circumstances and options available.
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Appealing a deportation ruling
An immigration judge's deportation ruling can be appealed. The appeal process begins after an immigration judge issues the deportation ruling in your initial hearing. You have the right to appeal the decision, and you must file an appeal within 30 days of the court ruling. This is done by submitting Form EOIR-26 Notice of Appeal to the Board of Immigration Appeals (BIA), an office of the Department of Justice (DOJ). You must state the reason for your appeal on Form EOIR-26, and a filing fee is also due at this time. If you cannot pay the fee, you can submit a fee waiver form.
Form EOIR-26 asks whether you intend to submit a written brief. A written brief provides a detailed explanation of the legal grounds for your appeal and is very valuable in strengthening your case. If you are not being detained, you will have 21 days from your briefing notice to submit the brief, and the opposing party will have 21 days from the date the brief was due. The BIA will review your written documents and make a decision. This can take anywhere from six months to several years. If the BIA rules in your favor, your deportation order will be overturned.
If the BIA denies your appeal, you can escalate your case to the federal courts. At this stage, you will file a petition for review with the federal circuit court. Appealing to the federal courts does not guarantee success, but it gives you another chance to argue your case. The federal court may review the legal basis of the BIA’s decision, especially if constitutional rights or significant errors in applying the law are involved. Federal court appeals are more complex than the initial BIA appeal, so having an experienced immigration attorney is crucial. While your appeal is pending, the deportation order is usually paused, meaning you won’t be deported during this time.
It is important to note that the appeal process is time-sensitive and has strict deadlines. Engaging an immigration lawyer to handle your appeal can significantly enhance your chances of success.
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Frequently asked questions
Deportation is the process of removing a noncitizen from the U.S. for violating immigration law.
Reasons for deportation include document fraud, forgery, counterfeiting, espionage, aggravated felonies, and crimes of moral turpitude.
Crimes of moral turpitude include shoplifting, simple assault, and DUI that did not involve driving without a license or damage to property or persons.
You have the right to a hearing to challenge a deportation order, the right to an attorney, and the right to contact your consulate.
