What Immigration Laws May Apply to Removal and Deportability Grounds?
The Immigration and Nationality Act (INA) is a broad immigration law that applies to almost every issue that may arise related to immigration, including removal and deportation. The INA may also be referred to as the Hart-Cellar Act.
The INA provides the qualifications that an individual must meet to become a naturalized citizen of the U.S. The INA applies to most immigration issues.
There are also other laws and executive orders along with the INA that may affect immigration issues. All of these laws can be updated or changed often, especially when presidential administrations change. These orders are discussed below.
Executive Order Protecting the American People Against Invasion
The order provides information and policies on enforcement of deportation or removal, enforcement of illegal entry, and unlawful presence for people unlawfully present in the U.S. Additionally, the order expands expedited removal.
Executive Order Protecting the Meaning and Value of American Citizenship
The order terminates birthright citizenship, or 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
The order bans entering the United States at the southern border. However, applicants can 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)
The order limits how people are allowed to try and enter the United States. Similar to the previously mentioned order, refugees may be admitted on a case-by-case basis. At this time, however, USRAP is suspended indefinitely until it is evaluated further.
All immigration laws, including those discussed above, can have a direct effect on someone’s immigration, removal, and deportation. It is essential to be aware that immigration laws can be modified at any time, especially when there are changes in presidential administration.
Because of this, it is important to seek legal advice when someone has any time of immigration issue, including removal or deportation.
Who Is Subject to Removal Proceedings?
A non-citizen alien who is suspected of being removable may be subject to removal proceedings. These types of proceedings are typically done on an individual, case-by-case basis.
Grounds for removal or deportability may include:
- Overstaying a visa
- Violations of criminal statutes
- Denial of immigration petition applications
- Other problems or issues which may make an individual’s presence in the United States illegal
An individual is summoned to a removal proceeding by a Notice to Appear (NTA). This notice informs the individual of their case and instructs them further regarding the removal proceedings.
What Powers Does ICE Have?
Immigration and Customs Enforcement (ICE) is the enforcement arm of the Department of Homeland Security (DHS). ICE may also be considered similar to an immigration police because it investigates crimes that involve:
- Human trafficking
- Drug smuggling
- Gun smuggling
- Money laundering
- Passport fraud
- Child pornography
- Bomb threats
- Other offenses
ICE has the power to detain individuals who are suspected of being:
In addition, ICE can arrest people who they suspect have broken immigration laws. ICE can detain a suspect for 48 hours without a warrant or longer under certain emergency circumstances.
After 48 hours, ICE has to either release the person or begin deportation procedures. ICE can release someone who was detained on bond with the bond being at least $1,500.
A bond amount may be challenged as excessive at a judicial hearing. The person who is detained can challenge their detention by arguing that they are not an illegal immigrant, a terrorist, a human trafficker, or any of the other groups ICE has the authority to deport.
Legal complications can extend someone’s detainment for a long time. After six months, the detained individual has the right to demand a court hearing.
In some situations, the person who is detained by ICE cannot be returned to their country of origin. This can result in indefinite detention.
The Supreme Court held that, in these situations, these individuals can demand a writ of habeas corpus following six months of detainment. This writ allows the detained person to challenge the detainment in court.
It is important to be aware that Miranda warnings may not apply to immigration arrests due to the fact that removal proceedings are categorized as civil instead of criminal. The detained person, however, can invoke their right to remain silent.
Should ICE agents ask to conduct a search or ask questions about the person’s immigration status, they can verbally state that they do not consent. Additionally, they should not sign any documents without having an attorney review them first.
These actions are in alignment with case laws holding that noncitizens still retain certain Fourth and Fifth Amendment protections, even in narrower immigration contexts.
What Can be Expected During Removal Proceedings?
During removal proceedings, an individual can expect a thorough examination of the evidence that is related to their removal case. During these proceedings, the individual is allowed to present their case to the immigration judge, which may include:
- Statements from witnesses
- Expert testimony
- Evidence, for example, documents
All of these may be used to help prove that the individual should not be removed from the United States.
What Types of Evidence (Documents) Are Required In Court for a Deportation or Removal Case?
When someone is involved in a deportation or removal case, it is important to have the right evidence and documents. The proper documents can help establish an individual’s credibility and support their case.
The categories of documents that can be helpful and required include:
- Personal Identification: This category of documents may include birth certificates, marriage certificates, or government-issued IDs that establish identity and connections in the country.
- Proof of Physical Presence: This category may include employment records, lease agreements, or utility bills that show residence in the U.S. for a specified period.
- Proof of Good Moral Character: This category may include letters of recommendation, criminal background checks, or certifications of community service.
- Proof of Family Ties: These are documents that show an individual’s relationships to citizens or permanent residents, for example, birth certificates of children who were born in the country or marriage certificates.
- Evidence of Hardship: This may include medical records that show the person or their close family member has a serious health condition, a letter from a therapist, or other documents that show the hardship that would be caused by deportation.
There may also be other required documents for an individual’s specific case. Because of this, it is important to have help from a lawyer for any deportation or removal issues.
What Should I Know about the Removal or Deportation Proceeding?
When an alien who is placed in a removal or deportation proceeding, there are certain rights that they possess. For example, during the removal or deportation hearing, courts have held that aliens are entitled to have the assistance of an attorney.
Attorneys, however, are not appointed and the alien is provided time to find an attorney. Other issues that aliens should be aware of before arriving at the removal or deportation hearing include:
- The hearing is held in the district of the alien’s arrest or their residence
- The main functions of the immigration judge are to determine deportability and to establish the country of the alien’s deportation
- The judge also controls the conduct of the hearing and has the power to grant continuances
- At the end of the hearing, the judge will render their decision
- A trial attorney may be assigned to all removal or deportation cases in certain districts
- This attorney presents evidence on behalf of the Government and may examine the alien and witnesses
- Interpreters are important in the deportation process
- At the hearing, the Government will furnish an interpreter
- In certain cases, an alien may be allowed to bring in their own interpreter to monitor the correctness of the translation
- Counsel should ensure that the interpreter speaks the same language and dialect as the alien
What Are the Grounds of Removal or Deportability?
There are numerous grounds for removal or deportability, including:
- Inadmissibility at time of entry:
- Any alien who was inadmissible at the time of their entry or adjustment of their immigration status is deportable
- Those who are present in violation of any United States law are deportable
- A nonimmigrant, or an individual who only planned to visit the U.S. for a short period of time, who violates their nonimmigrant status and any alien who has violated the conditions of their entry, is deportable
- Any alien who has, in any way, assisted in smuggling another alien into the country is deportable
- Those who have obtained a visa or other documentation on the basis of a fraudulent marriage are deportable
- Criminal offenses:
- An alien who has committed a crime of moral turpitude, or an act which is intrinsically wrong, may be deportable
- It is not clear exactly what constitutes crimes of moral turpitude but is based upon the moral standards prevailing in the United States
- Those convicted of multiple crimes or an aggravated felony, for example, murder, drug trafficking, or a theft in which the term of imprisonment is over one year, may be deportable
- Drug abusers or addicts, and those who violate controlled substances laws or regulations may be deportable
- Those who commit certain domestic violence crimes or firearms offenses may be deportable
- Failure to register or falsification of documents:
- Those who have changed their address without notifying the Attorney General within 10 days may be deportable
- Any alien convicted of fraud or misuse of visas may be deportable
- Any alien who has falsified an immigration document is deportable
- Security:
- Those who have been or are engaged in acts of espionage, or the illegal export of goods, technology, or sensitive information, or sabotage, or activities relating to the overthrow of the U.S. government, against the U.S. are deportable
- Those who have or are engaged in terrorist activities are deportable
- An alien whose presence the Secretary of State has reason to believe would cause a serious, adverse effect on foreign policy is deportable
- Economic:
- Those who have become a public charge, or those who end up on welfare, from causes existing prior to admission may be deportable
- Unlawful voters:
- Any alien who has illegally voted in an election is deportable
Can the Results of Removal Proceedings Be Appealed?
In certain cases, the results of a removal proceeding may be appealed. This applies especially in cases where there was an administrative error in the process, for example, a defect with the Notice to Appear or an administrative oversight.
If an appeal is not permitted or granted, the individual will be removed from the United States. Aside from appeals, some non-citizens may be granted relief from deportation, for example, through a cancellation of removal or a temporary suspension.
These are granted on a case-by-case basis and typically require the assistance of an attorney.
What Is a Stay of Removal?
A stay of removal refers to a temporary postponement of the removal of the alien from the United States. A stay of removal is often administrative in nature, for example, when the immigration court needs to sort out a legal issue before an individual can be removed.
Therefore, a stay of removal is not a permanent stop of the removal order as with a cancellation of removal because of a hardship or other reason.
Who Is Eligible for a Stay of Removal?
In the majority of cases, it is up to a judge to determine which individuals are eligible for a stay of removal. This is typically done on an individual, case-by-case basis.
There are two basic categories of stays of removal, including an automatic stay of removal and a discretionary stay of removal. An automatic stay of removal is available when an appeal is filed within the required time frame under immigration rules.
The stay will be automatically granted under certain conditions. This may occur when the final outcome of the immigration case is pending before an immigration judge.
A discretionary stay of removal allows an immigration judge or panel to stay a removal at their own discretion, or choice. This is typically available if there is one of the following in effect:
- An appeal
- A motion to reconsider
- A motion to reopen
Because of this, a stay of removal is more of a procedural issue than one of the more specific forms of relief from deportation or removal.
Should I Contact an Attorney?
If you or a loved one are being deported or you believe that you may be removed or deported, it is important to consult with an immigration attorney. Your attorney can advise you of your rights in this complicated area of the law.
It can be very challenging to handle removal and deportation issues without the help of a lawyer, especially if English is not your first language. In only a few moments, you can use LegalMatch’s online attorney matching services at no cost to find an immigration lawyer near you who can help you with your removal or deportation issue.
When you are completing the submission process, you can choose your language preferences to ensure that you will be able to communicate clearly with your attorney. As an added bonus, many lawyers will also offer free initial consultations, which allows you to consult with multiple licensed and prescreened attorneys, potentially at no cost.
