Deportation occurs when the United States orders an individual to leave the country. Deportation, also known as removal, can be difficult for individuals and families. The laws surrounding deportation are complicated, and hiring a deportation/removal attorney is highly recommended.
Professional attorneys may be able to offer arguments against deportation, including any one of the following:
- Cancellation of an order of removal
- Prosecutorial discretion
- Requests for asylum
- Arguments based on the U.N. Convention Against Torture, and
- Appeal of order or removal.
Your lawyer will fight to help you stay in the country. A lawyer is your safest bet at staying where you are.
What Is Removal?
Removal occurs when the United States government decides that a foreign-born individual should no longer be in the United States and legally removes that person from the United States.
Reasons for Deportation
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 their home country for several reasons, such as:
- Committing fraud or misrepresenting a material fact to get a visa, green card, etc.
- Convicted of a narcotics crime (possessing a minimal amount of marijuana may be an exception)
- 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 perpetrate these crimes is also grounds for deportation)
Can a Person Reapply for Admission into the U.S. After Being Deported?
In many cases, yes. The applicant would need to fill out immigration Form I-212, “Application for Permission to Reapply for Admission into the United States after Deportation or Removal.” The form can be acquired through U.S. immigration authorities and should be submitted to the appropriate agency.
Through voluntary departure, those who have left the U.S. will also need to file an I-212 form if they wish to be readmitted into the country. There is usually a bar or waiting period after the individual is deported before they can submit the I-212. These are:
- The 5-year bar for first-time offenders, including those subjected to expedited removal, and for those removed upon their arrival in the U.S.
- The 10-year bar for aliens removed after a removal hearing while in the U.S.;
- The 20-year bar for aliens removed more than once; and
- The permanent bar for removal based on a conviction for an aggravated felony
So, for instance, a person who was removed after being subjected to a removal hearing while in the U.S. will have to wait for ten years before they can file a Form I-212 for readmission.
What Are the Eligibility Requirements for Form I-212?
There are no fixed eligibility requirements for Form I-212: Each application is reviewed case-by-case. Each deportation/removal case is different, and there are various factors involved with each applicant. Some of the elements that the immigration judge considers may include:
- The reason for the earlier deportation(s)
- How recently the deportation/removal materialized
- How long the applicant lived in the U.S. (a positive factor only if the residence was not unlawful)
- The applicant’s moral character and regard for law and order
- Proof that the applicant has been reformed or rehabilitated (such as completion of a rehabilitation program)
- The applicant’s family commitments
- The applicant’s inadmissibility under different sections of U.S. law
- Problems experienced by the applicant
- Whether the applicant is needed for services or employment in the U.S.
All of these elements will be considered when the application is examined. It is usually necessary for the applicant to attend an immigration hearing for further questioning and review. When the application is filed, there may also be waiting periods (at least 3-4 months) and fees.
What is “Illegal Re-entry” After Deportation?
If a non-citizen has been subjected to removal or deportation from the U.S., they are generally prohibited from returning to the U.S. to re-enter the country.
Therefore, illegal re-entry refers to any attempt to enter the U.S. after a person has been removed or deported from the country. Nevertheless, it should be noted that the Immigration and Nationality Act defines criminal re-entry very broadly.
Re-entry is considered to be prohibited if the individual tries to enter the U.S. without government approval after:
- Being denied admission into the country
- Being excluded from the U.S.
- Being removed or deported from the U.S.
- Leaving the U.S. while an order for deportation, removal, or exclusion is still outstanding
Therefore, illegal re-entry can happen even if the individual has not yet been formally subjected to removal proceedings.
What Happens If an Immigrant Illegally Re-enters The United States After Being Deported?
According to the Immigration and Naturalization Act (INA), an alien deported from the United States cannot legally re-enter for five years or 20 years for a second removal. An alien who disobeys these exclusion periods may be ordered removed again if they try to re-enter the country.
While removal proceedings are not criminal, lengthy jail sentences may be imposed for repeat offenders. For example, a man was sentenced to 45 months in prison by a federal judge for trying to re-enter the U.S. 6 times in 4 years.
Border patrol officers are now given considerable discretion to turn back undocumented aliens without a judicial hearing if there is a reasonable likelihood an alien is lying about their identity and lacks any valid documentation. Proponents say it saves the court system from overcrowding, but skeptics say this violates the immigrants’ due process rights.
What Are the Penalties for Illegal Re-entry into the U.S.?
The punishments for improper or illegal re-entry into the U.S. after deportation can include:
- Federal criminal charges
- Weighty monetary fines
- Up to 2 years for first time offenses; or
- Up to ten years if the earlier removal was based on a felony, or conviction for three or more misdemeanors involving crimes against the person or drug crimes; or
- Up to 20 years if the previous removal was based on an aggravated felony.
Thus, it’s essential that the individual seeking re-entry into the U.S. after deportation file the I-212 and observe various requirements. Failure to do so will negatively impact the individual’s ability to enter the U.S. in the future.
What Can Immigrants Do If Accused of Illegal Re-entry?
Generally, deportations of aliens living peaceably in the U.S. are fairly infrequent. If a person is under threat of deportation, authorities will normally allow the person to willingly depart, which may stop future restrictions on lawful re-entry.
The five and 20-year restrictions can be avoided if the alien files a particular application with the Attorney General. Applications are typically unsuccessful absent a good reason, such as miscarriage of justice or emergency asylum. To qualify, the immigrant should fill out an I-212 form, required if an immigrant wishes to enter the country after being deported legally.
Immigrants can try to argue that the original deportation order was invalid. Yet, immigration courts usually consider the book closed after deportation is ordered. Any records of deportation proceedings are not subject to being reopened or reviewed, absent a “gross miscarriage of justice.”
How Can a Lawyer Help With Readmission Into the U.S. After Deportation?
While being readmitted into the U.S. after removal can be challenging, it’s not unattainable. You may wish to hire an immigration lawyer for help with filing Form I-212.
There are many conditions associated with the form, and the applicant will likely have to attend one or more hearings after applying. An experienced immigration lawyer can provide you with legal guidance and keep you notified of any changes to immigration laws.