Immigration laws are the set of laws in the United States that regulate how an individual from outside the United States may qualify for a visa. Immigration laws also deal with under what circumstances that individual may be deported. In the United States, there are many different kinds of temporary and permanent visas. Thus, it is important to have a thorough understanding immigration laws and how they can affect an individual’s entry and stay in the United States.
In the United States, there is a large number of immigrants who already reside legally on either a green card or permanent visa. Those immigrants already present must abide by immigration laws. This means that immigrants must avoid any activities that may bring about a deportation action.
What Is Legal Immigration?
Legal immigration refers to the process in which a non-citizen is allowed to be in the United States legally. In other words, the non-citizen is a green card holder. It is important to note that a permanent resident status may be granted to certain classes of persons who immigrate legally. Permanent resident status is an important step that needs to be taken towards obtaining permanent U.S. citizenship.
Typically, most green card holders start off with a temporary visa and then work towards having their residency status changed to permanent after a period of time. With permanent residency status an individual may work at any job legally in the United States, as well as own personal property.
Importantly, permanent residents do not have to return to their home countries after the expiration of a period of time, so long as their green card remains valid. Additionally, permanent residence status can result in being able to apply for U.S. citizenship. Once full citizenship is obtained, an individual has the full set of individual rights that the United States has to offer under its laws and Constitution.
These individual rights include rights such as
- The right to vote in local and national elections;
- The right to petition immigration authorities for other family members to immigrate to the United States; and
- The right to travel and live in other countries without losing their right to return back to the States.
What Are The Legal Penalties For Illegal Immigration?
It is important to note that in the United States, illegal immigration is considered to be a serious criminal offense. Therefore, if an individual illegally enters the United States, they will likely face severe criminal penalties.
Examples of consequences for illegally immigrating include, but are not limited to:
- Removal of the individual from the United States. This is also known as deportation;
- The temporary or permanent loss of the individual’s residence status;
- Possible bans on the individual’s ability to re-enter the United States legally in the future. Bans on an individual’s ability to re-enter may be either temporary or permanent in nature. For example, the first time an individual is charged with illegal immigration may result in the the immigrant being banned from re-entering the country for a temporary number of years, such as five years. However, an individual that repeatedly is charged with illegal immigration, or was deported due to serious criminal activity, may be permanently banned from entering the country; and
- Other criminal consequences, such as criminal fines. Importantly, criminal fines and imprisonment also apply to individuals that are caught assisting others in the illegal immigration. For example, employers or family members may also be charged for assisting in illegal immigration and have to pay criminal fines or serve time in prison.
In the United States, there are various agencies that are in charge of enforcing United States immigration laws. Those agencies include:
- The United States Citizenship and Immigration Services (“USCIS”): USCIS is an agency of the United States Department of Homeland Security (“DHS”), which is in charge of adjudicating petitions for immigration, application, and naturalization benefits;
- The Customs and Border Protection agency (“CBP”): This is the agency that is in charge of enforcing immigration law at and between ports of entry;
- The Immigration and Customs Enforcement agency (ICE): This is the agency that is in charge of interior enforcement of immigration laws, including the detention and removal of individuals from the United States; and
- The United States Department of Justice (“DOJ”): The DOJ, specifically the sub-agency Executive Office for Immigration Review (“EOIR”), is the agency that conducts removal proceedings in immigration courts and adjudicates appeals of those proceedings.
What Are Immigration Courts?
Immigration courts are a separate court system run by the EOIR. Immigration courts are located all over the United States in major immigration hubs. As of 2022, there are a total of 63 immigration courts. Immigration courts are special administrative courts, i.e. part of the executive branch of the government, that only deal with immigration-related cases. As such, immigration court judges have broad authority over the cases brought before them in court.
However, there are not many immigration judges in the United States, especially given the amount if immigration cases pending. In fact, the number of immigration judges in the United States is less than 400, whereas the amount of pending immigration cases totals well over 700,000. If the cases are divided evenly, this means that each Judge has a backlog of well over 1,750 cases waiting to be heard. Typically, the average wait time for an immigration case to be heard in the United States is over two years, with some of the more populous cities such as San Antonio and Chicago having an average wait time of over four years.
Once again, the EOIR grants immigration court judges the ability to decide whether someone is removable or deportable. Importantly, the opposite is also true. This means that immigration judges can stop an individual’s deportation, offer and individual asylum, or otherwise grant protection to an individual under the United Nations Convention Against Torture.
Immigration judges are also in charge of reviewing evaluations of foreign nationals that are accused by DHS of violating immigration laws. Common legal powers of immigration judges include the power to rule on motions, issue subpoenas, and order pre-trial conferences.
Although Immigration court judges exercise broad authority, there are several immigration issues that immigration judges do not have control over. For example, visa petitions and employment authorizations are handled by USCIS not the DOJ. Also, immigration court judges do not have the ability to accept or revoke an individual’s naturalization.
Further, the immigration court system also has an appellate body known as the Board of Immigration Appeals (“BIA”). These are the judges that are responsible for deciding appeals of the decisions of immigration court judges. Typically these reviews will be done through submission of paper records, rather than in courtroom proceedings. However, there are instances in which the BIA will hear oral arguments. The Attorney General for each state has the power to refer cases the themself to overturn BIA rulings, however this is rare.
If an individual’s appeal is denied, they may also choose to file a petition for review in the federal Court of Appeals in their respective federal circuit. It is important to note that filing an appeal does not mean an individual will not be deported until the appeal is decided. Therefore, it is important for an individual or their representative to file a “stay of removal” for the duration of the appeals process.
Do I Need a Lawyer for Help With Immigration Court?
If you have received a notice to appear before an immigration court, it is important to immediately consult with an experienced immigration attorney.
An experienced attorney will be able to advise you of your legal options regarding the immigration process, as well as represent you throughout your immigration case. Additionally, an immigration attorney will also be able to represent you at any in person proceedings.
