Immigration

Deportation and Removal Process in U.S. Immigration Court

By Ilona Bray, J.D., University of Washington Law School
What happens if you're caught by U.S. immigration authorities?

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When someone is either caught in the U.S. with no documents, or is alleged to have violated the terms of a visa or green card, the U.S. government will ordinarily initiate deportation (removal) proceedings. These may lead to the person being cleared of the charges (and perhaps even gaining an immigration benefit), agreeing to leave voluntarily, or receiving an order of removal.

Even if the result is deportation, the important thing for anyone facing such proceedings to know is that it doesn't happen overnight. Deportation from the U.S. involves many steps, from the initial notification, to one or more hearings, to the judge's order of removal, to the actual transport out of the country.

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 it works.

Possibility of Detention

In some cases, usually where the non-citizen has committed a crime, the law requires the Department of Homeland Security (DHS) to detain the non-citizen while the proceedings are ongoing. This article does not discuss the details of immigration proceedings in detention.

How the Deportation and Removal Process Starts

The removal process normally begins with the DHS issuing the non-citizen 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) on a certain date, and gives you other information, such as:

  • why you're being ordered to appear
  • how you allegedly broke the law or violated your immigration status
  • your right to have an attorney, whom you'll have to choose, hire, and pay for, and
  • the consequences of your failure to appear at the hearing (which include that you might be issued an order of deportation in your absence, which would block any chance you might have of gaining U.S. immigration benefits for the next ten years, at least).

If the judge determines that the basic charges in the NTA are correct, and perhaps that you're potentially eligible for some form of relief, the judge will schedule another, longer, individual hearing.

Relief From Removal

There are several types of relief from removal that may allow you to stay in the United States. Some of the most commonly used are:

  • cancellation of removal
  • adjustment of status,
  • prosecutorial discretion, and
  • asylum.

Cancellation of Removal

Cancellation of removal literally means that your removal is cancelled or stopped by the IJ. But it also comes with a right to lawful permanent residence (a green card).

The availability of this relief is different for someone who is already a lawful permanent resident (LPR) than for a non-lawful permanent resident (non-LPR), most likely an undocumented alien.

If you're an LPR, you're eligible for cancellation if you have, at the time of receiving the NTA:

  • lived in the U.S. for seven years straight (not counting any short trips), after being admitted to the U.S.
  • been an LPR for at least five years
  • never been convicted of an aggravated felony (such as rape, fraud, money laundering, murder, sexual abuse of a minor, and numerous other crimes), and are not a spy, terrorist, threat to national security, persecutor, or torturer, nor have committed genocide, extrajudicial killing, or severe violations of religious freedom, and
  • never been granted cancellation of removal in the past.

If you're a non-LPR, you're eligible for cancellation if you have, at the time of receiving the NTA:

  • been in the U.S. continuously for at least ten years
  • not, during that ten-year period, been served with an NTA, and didn't commit certain crimes
  • been a person of "good moral character" during the ten-year period, and
  • evidence 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 an LPR.

Adjustment of Status

Adjustment of status is the procedure by which an alien changes his or her status to lawful permanent resident. If you have some separate ground of eligibility for a green card that you have for some reason never pursued; for example, you're married to a U.S. citizen; you might be able to apply for adjustment through the immigration court. In order to qualify for adjustment based on family:

  • you must not be inadmissible under the Immigration and Nationality Act (I.N.A.), and
  • an immigrant visa must be immediately available to you at the time you apply.

You aren't eligible for adjustment of status if:

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

Prosecutorial Discretion

U.S. immigration authorities do not have the time or resources to pursue every removal case that comes before them. Therefore, they have set certain priorities, namely for:

  • national security

  • border security

  • public safety, and

  • the integrity of the immigration system.

If you do not present a risk to any of these, Immigration and Customs Enforcement (ICE) might cooperate with the IJ in granting you what's called prosecutorial discretion. This most likely will just mean closing your case, or putting it on indefinite hold.

There are also prosecutorial discretion “programs,” such as Deferred Action for Childhood Arrivals (DACA) and deferred action for domestic violence victims seeking a green card based on a relationship to a U.S. green card holder or U.S. citizen. See Deferred Action for Childhood Arrivals (DACA) and My abusive husband threatens to stop sponsoring me for a green card--what can I do?.

Asylum

Asylum can be granted to an alien who meets the criteria for being considered a refugee. You have to show a fear of returning to your native country because of your past experience of persecution or a well-founded fear of future persecution (such as torture, injury, death, or other severe mistreatment or discrimination). This persecution must be based upon your race, religion, nationality, membership in a particular social group, or political opinion. The persecution can come from the government of your country or from groups the government cannot control.

Other types of relief might be available if you've been placed in deportation proceedings. 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 ordering 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 of my home country has changed and it's no longer safe there for me and my family. Can I apply for asylum now?
  • My brother, who is a U.S. citizen, filed an I-130 petition for me ten years ago, but my priority date isn't yet current. Is this a way to avoid removal?
  • How long will the deportation hearing take?

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