How to Know If I Have a Removal or Deportation Order
As mentioned above, usually a person determined by the USCIS to be subject to removal first receives a written Notice to Appear at a hearing before an immigration judge. The Notice to Appear informs the person that they have done something that warrants their removal from the U.S. and tells them to appear in a federal immigration court at an initial hearing.
The person should attend the initial hearing in order to learn why the USCIS seeks the person’s removal. The initial hearing usually proceeds quickly. The case is set for a later hearing on the merits of the USCIS’s case for removal.
Also, the immigration judge who presides at this first hearing asks the person who has been ordered removed whether they admit or deny factual allegations and admit or deny the charge of removability that is shown on the Notice to Appear. In most cases, a person should deny the allegations and contest the charge of removability. Then the U.S. Department of Homeland Security’s (DHS) must prove that the person is actually removable.
At the hearing on the merits of the case, the person whose removal is sought either presents an affirmative defense, that is establishes a good reason as to why they should not be removed, or submits a request for relief of removal. The person can present evidence to show why they should not be removed. Evidence can be documents or the testimony of witnesses.
The government also has the opportunity to present its evidence to show why the person should be removed. The judge then rules on the removal, either ordering the person removed or ordering the government not to remove the person. The person would receive notice of the judge’s ruling.
Undocumented immigrants might have grounds to avoid the removal as follows:
- Family-Based Adjustment of Status: If a person has entered the U.S. legally, they may qualify an adjustment of status to get legal status through a family member, who would most likely be a U.S. citizen.
- Asylum: Asylum offers legal protection to people who have fled persecution or fear future persecution in their home country. A grant of asylum allows legal status in the U.S., a work permit, and eventually a green card.
- Withholding of Removal: To obtain withholding of removal, a person must show that it is more likely than not that they would be persecuted in their home country if they return. People who are granted withholding of removal are usually ineligible to apply for permanent residence or travel outside of the U.S. The person can, however, stay in the U.S. and obtain a work visa.
- Protection Under the Convention Against Torture (CAT): Protection under CAT is available only if it is more likely than not that the government of the person’s home country, or some person or group the government cannot control, will inflict torture on that person. CAT is also like withholding in that people who receive CAT protection cannot ever get U.S. permanent residence or travel outside of the country. But CAT recipients can usually remain and work in the U.S.
- Cancellation of Removal for People Who Are Not Lawful Permanent Residents: This remedy is a way of obtaining a green card if a person can prove their presence in the U.S for ten years and can also show that their removal would cause exceptional and extremely unusual hardship to one of their qualifying relatives, e.g. a spouse, parent, or child who is a U.S. citizen or permanent resident.
- Cancellation Under the Violence Against Women Act (VAWA): Similar to cancellation of removal for non-permanent residents, a person applying for VAWA cancellation must show that they have been battered or subjected to extreme cruelty by a qualifying relative and meets other requirements, e.g. three years of physical presence in the U.S.
- Deferred Action for Childhood Arrivals (DACA): This program allows certain people who are unlawfully present in the U.S. after being brought to the country as children to receive a renewable two-year period of deferred action from deportation and become eligible for a work permit in the U.S. The person cannot have either felonies or serious misdemeanors on their records. There are other requirements as well.
- It is important to note that DACA is still enforced for applicants prior to July 16, 2021. However, the program has been halted pending further court review.
- Prosecutorial Discretion: This is a decision by the government agency that is trying to deport a person to stop trying to do so. This may make a person eligible to apply for a work visa, but not for other benefits such as the right to travel.
- Usually, persons whose cases are closed based on prosecutorial discretion do not have a criminal record, but there are no hard and fast rules about who can receive this benefit. Prosecutorial discretion is difficult to obtain and must be discussed with the government attorney handling a person’s case.
If the judge orders the person’s removal after a hearing on the merits of their case, they can then file an appeal in most, but not all cases.
There are a number of types of letters and forms used in the large variety of immigration processes and procedures. A “deportation order letter” might be a Notice to Appear or it might refer to a letter that a friend or relative submits to an immigration judge on behalf of a person who has been ordered removed asking for clemency or pleading hardship as a reason for the judge to allow the person to stay in the U.S.
Is Appealing a Removal or Deportation Order Possible?
If an immigration judge orders a person’s removal, or deportation, the order can be appealed with certain exceptions. The person who has been ordered removed must file an appeal to the U.S. Board of Immigration Appeals (BIS) within 30 days of the immigration judge’s decision in their case. The Board of Immigration Appeals reviews immigration court decisions.
There is no deadline for the BIA to review immigration court decisions, however it currently claims that it tries to resolve all cases within 180 days. This means that a person could expect to receive a decision within 180 days of filing their appeal.
If a person appeals a judge’s decision that removal is appropriate and the BIA rejects the appeal, the person can then appeal the BIA decision to the federal appellate courts. An appeal to the federal appellate courts would be time-consuming and would best be handled by an experienced immigration attorney.
Whether a removal order can be appealed depends on the grounds for removal. If a person’s removal has been ordered because they committed a crime of which they have already been convicted, then an appeal of a removal order is not available.
For example, if the removal order is based on the fact that the person committed a crime, an appeal would only be allowed for the purpose of convincing the judge that the person is innocent. The appeal would be a kind of criminal trial. But if the person has already been convicted of the crime, whether by a jury after a trial or by entering a guilty plea, the person may not appeal. The person’s guilt has already been decided and there would be no point in an appeal.
What Immigration Laws May Apply to Removal and Deportability Grounds?
One law that applies to almost every immigration issue is the Immigration and Nationality Act (INA). This broad law also applies to removal and deportation.
The INA also outlines the requirements for becoming a naturalized citizen of the United States. There are additional laws as well as executive orders that can apply to all immigration issues.
- Executive Order Protecting the American People Against Invasion: Provides information and policies related to the enforcement of deportation or removal, unlawful presence for people unlawfully present in the U.S., and enforcement of illegal entry.
- It also expands expedited removal.
- Executive order Protecting the Meaning and Value of American Citizenship: Terminates birthright citizenship, which may also be called anchor baby status.
- Birthright citizenship is when a child is born in the U.S. and is automatically given citizenship. At least one parent of a child has to be a permanent resident or citizen of the U.S. for birthright citizenship to be given.
- If the parent or parents are on a temporary visa in the United States, they will not be granted birthright citizenship.
- Presently, this order is not being enforced because of an injunction.
- Executive Order Guaranteeing the States Protections Against Invasion: Bans entrance into the U.S. at the southern border.
- Applicants may be admitted by the Secretary of State and Department of Homeland Security (DHS) on a case-by-case basis.
- Executive Order Realigning the United States Refugee Admissions Program (USRAP): Limits how individuals are allowed to seek entry into the United States.
- Similar to the previously mentioned order, refugees may be admitted on a case-by-case basis.
- Currently, USRAP is suspended indefinitely until it is further evaluated.
Every immigration law, including the ones discussed above, may directly affect an individual’s removal, deportation, and immigration. It is very important to know that immigration laws can be updated at any time, especially with changes in presidential administrations.
Due to the potential for changes, it is very important to have assistance from an immigration attorney, especially for issues related to removal or deportation, as that can have major and permanent effects on an individual’s life.
What Is a Waiver of Removal?
A request for a waiver of removal, a stay of removal, basically requests the government to forgive the person’s illegal presence in the U.S. and stay, or stop, their removal. This is not necessarily the same thing as an appeal, because the removal hearing may not have occurred before the waiver is requested. Waivers are usually available in cases in which the grounds for removal are not based on criminal convictions.
Another similar option is cancellation of removal. This is usually only an option if the removal would have serious effects on a person’s family, and the person has been living in the U.S. for at least 10 years. Also, the person’s family members must be U.S. citizens (whether through naturalization or by birth).
What Is Voluntary Departure?
Voluntary departure does not really prevent a person from being removed or deported from the U.S. With voluntary departure, the person agrees to leave the country before they are legally made to do so by Immigration and Customs Enforcement (ICE). This can have beneficial effects for the person later on, because it may improve their chances of re-entering the country at a later time.
On the other hand, if a person resists an order to be removed from the country, it can have negative effects on their ability to re-enter the U.S. again at a later date. For example, if a person is made to leave by ICE because they have ignored a removal order, they may be banned from re-entry for a number of years, or even permanently.
What Powers Does ICE Have?
Immigration and Customs Enforcement (ICE) is considered to be the enforcement arm of the Department of Homeland Security (DHS). It may also be seen as similar to an immigration police because it investigates crimes that involve:
- Money laundering
- Passport fraud
- Child pornography
- Bomb threats
- Human trafficking
- Drug smuggling
- Gun smuggling
- Other offenses
ICE can detain those who are suspected of being:
ICE can also arrest those suspected of breaking immigration laws. Ice is permitted to detain an individual for 48 hours without having a warrant or even long in certain emergency situations. Once 48 hours have passed, ICE must release the individual or start deportation procedures.
The detained party may be able to challenge their detention and argue they are not a terrorist, human trafficker, illegal immigrant, or a member of any other group ICE has the authority to deport.
If there are legal complications, an individual’s detainment may be extended for a long period of time. After six months have passed, the individual who is detained can demand a court hearing.
When an individual detained cannot be returned to their country of origin, it may result in an indefinite detention. If this happens, the detainee can request a writ of habeas corpus which allows them to challenge the detainment in court.
Miranda warnings might not apply to an immigration arrest because removal proceedings are considered to be civil instead of criminal. A detained individual has the right to invoke their right to remain silent.
If ICE requests to conduct a search or asks about the individual’s immigration status, they are allowed to verbally state they do not consent. In addition, no documents should be signed that have not been reviewed by a lawyer first. These precautions can be taken because noncitizens still have certain Fourth and Fifth Amendment protections.
Can I Come Back Legally after Being Deported?
Generally, once a person has been deported, they are not allowed to re-enter the U.S. In fact, illegal reentry after deportation can result in criminal prosecution by the U.S. government for improper re-entry, a crime that comes with punishment that includes up to 10 years in prison and/or a large monetary fine.
What Types of Evidence (Documents) Are Required In Court for a Deportation or Removal Case?
If a person is involved in a removal or deportation case, it is essential to be able to submit certain documents. These can be used to help establish credibility as well as support the claims made in the case.
There are several categories of documents that can be helpful or may be required, including:
- Personal Identification: This category of documents may include:
- birth certificates
- marriage certificates
- government-issued IDs that establish identity and connections in the U.S.
- Proof of Physical Presence: This category may include:
- employment records
- lease agreements
- utility bills that show residence in the U.S. for a certain period
- Proof of Family Ties: These documents demonstrate someone’s relationships to citizens or permanent residents, which may include marriage certificates or birth certificates of children who were born in the country.
- Proof of Good Moral Character: This category may include:
- letters of recommendation
- criminal background checks
- certifications of community service
- Evidence of Hardship: This may include:
Other documents may be required depending on the facts and circumstances of the case. Due to the possible changes in immigration laws as well as the different documents that may be required depending on an individual’s situation, it is imperative to have help from an immigration lawyer.
Do I Need a Lawyer for Help With Appealing a Removal or Deportation Order?
The process of appealing a removal or deportation order can be complicated and is only available under certain circumstances. In most cases, you need to hire an experienced immigration lawyer if you are facing a removal order or if you want to appeal an order of removal.
Removal (deportation) hearings are among the most serious types of legal proceedings, because deportation can eliminate a person’s right to re-enter the U.S. legally. So a person should be sure to consult with a qualified immigration attorney if you need legal representation.
An experienced immigration lawyer can review the facts of your situation and identify any grounds for opposing the removal that may be available to you. The law in this area is complex and a qualified lawyer is best equipped to advise you of all of your options.
Taking care of removal or deportation issues can be extremely difficult without assistance from an attorney. If you have a few moments, you can take advantage of LegalMatch’s free online lawyer matching services to find an immigration attorney in your area who can assist you with your removal or deportation issue and who can communicate with you in your native language.
When you complete the submission process, you are able to choose your language needs to make sure that you and your lawyer are able to communicate about all of your concerns. Many LegalMatch attorneys also offer potential clients free initial consultations. This means, if you start today, you can potentially find an attorney you prefer and have an initial meeting at no cost.
