Deportation and Removal Process Text Size:

Under the Immigration and Nationality Act ("INA"), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA"), "removal proceedings" are used to determine whether a non-U.S. citizen, or "alien," should be deported, that is, expelled from the U.S.

The removal process has many steps, and it's complicated, from the initial notification that you're being deported, all the way to the final order of removal. So, if you're in the removal process now, or might be subject to the process in the future, you should know some things about how the removal process actually works.

How the Deportation and Removal Process Starts

Usually, the removal process begins with the Department of Homeland Security ("DHS") issuing you a Notice to Appear ("NTA"). This document states your name and the country in which you were born, orders you to appear before an Immigration Judge ("IJ"), and gives you other information, such as:

• Why you're being ordered to appear before the IJ
• How you allegedly broke the law
• Your right to have an attorney, who you'll have to hire and pay for
• The consequences of your failure to appear at the hearing

If the IJ determines that you can be deported, that is, the information in the NTA is correct, you can apply for relief from removal. If you're eligible for any such relief, another hearing will be held. If you're not eligible, then the IJ will order your deportation.

Relief from Removal

There are several types of relief from removal that will allow you to stay in the U.S. Some of the most common are:

• Cancellation of Removal
• Adjustment of Status
• Asylum

Cancellation of removal is simply that: your removal is cancelled or stopped by the IJ. The availability of this relief is different for a lawful permanent resident (LPR), such as an alien with a "green card," than for a non-lawful permanent resident (non-LPR), such as an undocumented alien. If you're an LPR, you are eligible if:

• You've lived in the U.S. for 7 years straight after you were admitted to the country
• You've been an LPR for at least 5 years
• You've never been convicted of an aggravated felony, and you're not a terrorist, crewman or exchange visitor, and
• You've never been granted cancellation of removal in the past

If you're a non-LPR, you're eligible if:

• You've been in the U.S. continuously for at least 10 years
• During that 10-year period, you were not served with an NTA and/or you did not commit certain crimes
• You were a person of "Good Moral Character" during the 10-year period
• You show that your removal would result in exceptional and extremely unusual hardship to your spouse, parent or child, and that the spouse, parent and/or child is either a U.S. citizen or a LPR

Adjustment of status is when an alien changes his or her status from non-immigrant to lawful permanent resident. In order to qualify for this relief, several conditions must be met, including:

• You must be admissible for permanent residence, that is, you're not inadmissible under the INA, and
• An immigrant visa is immediately available for you at the time you apply for an adjustment of status. Aliens who qualify for visas allowing an adjustment of status often have petitions that were filed by a spouse or another immediate family member who is a U.S. citizen or LPR, or an employer.

You are not eligible for adjustment of status in certain circumstances, including:

• You failed to appear at the removal proceedings after being served with a NTA
• You entered the U.S. illegally, that is, you were not interviewed by an immigration officer at the time you crossed the border
• You violated the restrictions on your temporary visa, like staying in the U.S. beyond the expiration date of your visa status

Asylum can be granted to an alien who qualifies as a "refugee." Generally, you have to show an inability to return to your native country because of past persecution or a well founded fear of future persecution based upon your race, religion, nationality, membership in a particular social group or political opinion.

However, you're generally not eligible for asylum if you did not file an asylum application within the first year after you entered the U.S., you have a conviction for an aggravated felony, or the DHS considers you to be a danger to national security.

There are other types of relief that might be available to you if you've been ordered deported. So, it's critical that you examine the INA completely, or seek the advice of an experienced immigration law attorney so that you know all of your options.

Questions for Your Attorney

• I moved from California to Colorado, but I just received a NTA that orders me to appear at immigration court in California. Do I really have to travel to California?
• I entered the U.S. 16 months ago under a temporary visa. I didn't apply for asylum at that time because I fully intended to return home. But, since that time, the government has changed and it's no longer safe there for me and my family. Can I apply for asylum now?
• How long will the deportation hearing take?

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