Deportation has many steps, and it's complicated: from the initial notification, all the way to the removal order. 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 works.
The Immigration and Nationality Act (INA), amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) determine removal proceedings whether a nonUS citizen, or alien, should be deported, sent back to you home country, from the US.
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
- 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 judge 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, another hearing will be held.
Relief from Removal
There are several types of relief from removal that'll allow you to stay in the US Some of the most common are:
- Cancellation of Removal
- Adjustment of Status
Cancellation of Removal
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 a noncitizen with a green card, than for a non-lawful permanent resident (nonLPR), such as an undocumented alien.
If you're an LPR, you're eligible if you have:
- Lived in the US for 7 years straight after you were admitted to the country
- Been an LPR for at least 5 years
- Never been convicted of an aggravated felony, and you're not a terrorist, crewman or exchange visitor, and
- Never been granted cancellation of removal in the past
If you're a non-LPR, you're eligible if:
- You've been in the US continuously for at least 10 years
- During that 10-year period, you were not served with an NTA and/or you didn't 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 US citizen or a LPR
Adjustment of Status
Adjustment of status is when an alien changes his or her status from nonimmigrant 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's a US citizen or LPR, or an employer.
You aren't 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 US 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 US 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 injury or death based upon your race, religion, nationality, membership in a particular social group or political opinion.
Other types of relief might be available tif you've been ordered to be deported. It's critical that you examined 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 US 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?