Removal (previously called Deportation) occurs when the United States government determines that a foreign-born individual should no longer be in the United States, and legally removes that person from the United States.
Before September 2002, the agency that was charged with overseeing immigration issues was the Immigration and Naturalization Service (INS). In September 2002, Congress passed and President Bush signed the Homeland Security Act, transferring the powers of the INS to the Department of Homeland Security. The immigration service functions of the INS are now placed under the Bureau of Citizenship and Immigration Services (BCIS).
Exclusion is determined when the foreign individual is seeking entry into the United States. Thus, when you are attempting to get a green card, a visa or just cross the border, you can potentially be excluded from consideration. If the United States has determined that you should be excluded, you cannot attempt to re-enter the U.S. for at least one year. It is a felony offense if you do re-enter before the end of that year. You must also gain permission from the BCIS before re-entering.
A person who is already in the United States is potentially subject to removal or deportation. A person here illegally, or with a valid visa or green card, can be deported. If you have been deported, you cannot gain re-entry into the United States for at least five years. It is a felony if you re-enter before the end of the five years. You must also receive permission from the BCIS before you re-enter.
Because staying in the United States is a privilege and not a right for non-citizens, the United States government can force an individual to return to his or her home country for a number of reasons, such as:
- Committing fraud or misrepresenting a material fact in order to get a visa, green card, etc.
- Convicted of a narcotics crime. Note: possessing a very small amount of marijuana may fall into an exception to this rule.
- Convicted of murder, illegal trafficking of firearms, money laundering, or crime of violence that carried a sentence of 5 or more years. Attempt or conspiracy to commit these crimes is also grounds for deportation.
If you have been served with an order for deportation proceedings, you still may be able to stay in the United States. There are several different ways you can seek relief from deportation. Some methods for relief from deportation include:
- Suspend deportation – A deportable alien must fulfill the following criteria to suspend deportation:
- The alien must be continuously and physically present in the United States for at least seven years
- The alien must be of good moral character
- The alien must show that if deported, this would cause extreme hardship on the alien or the family
- Asylum – Asylum may be granted to individuals who have been persecuted or who fear future persecution in the home country because of:
- Political belief or opinion
- Membership in a certain social group
- Withholding of deportation – Withholding of deportation can occur for reasons similar to granting asylum. Unlike individuals granted asylum, however, an individual granted a withholding of deportation cannot apply for permanent residence and can be deported to a different country than the home country.
- Voluntary departure – Voluntary departure is usually granted by an immigration judge after an order of deportation for an individual who seeks to leave voluntarily in lieu of forced deportation.
- Other methods – Check with your immigration attorney to discuss the possible methods appropriate for your situation.
An immigration attorney will be able to advise you of all the possible methods to legally avoid deportation. An immigration attorney can also help you with all the detailed procedures of the deportation hearing.