Immigration: Anatomy of Deportation

It is universally believed that the biggest concern to any immigrant trying to live and work in the United States is whether they are or will be subject to removal (deported) from the US.  For most, this is the worst thing that could happen to them or their families, especially for those who have made a life here for 10 years or longer.  Everyone fears deportation, but most do not really understand it.  There are many questions surrounding deportation that do not get answered until someone is faced with their own proceedings.  For example, what reasons can a person be refused entry into the US or deported after they have already entered?  

The largest category of people at risk of being deported are those who are undocumented.  This is even true if these people have lived in the US for many years.  Many wonder that if these individuals or families are not hurting anyone or getting into trouble with the law, why can they still be deported?

There are many grounds for the government to justify removing someone from the US and most of these reasons are for the purpose of protecting the country and the people within the country.  These reasons include health-related concerns, criminal grounds, lying to government officials to gain a benefit, the risk that someone will become dependent on government welfare programs, terrorism and other crimes.

Arguably the largest number of people subject to deportation in the US is if the person is here without prior permission (“unlawfully present”) from the US government.  These people are those that are undocumented (those who entered without inspection), applicants for admission at the border (nonimmigrant visa holders), those eligible for a visa waiver and applicants for adjustment of status from a nonimmigrant to a permanent resident.  

It is generally true that just being in the US without papers isn’t enough to get deported.  Usually someone needs to get into trouble at the local level before they will be deported.  Within the last several years, local trouble usually meant drunk driving, domestic violence or issues with substance abuse.  Although there is much media coverage over recent plans of the Trump administration to equally go after all undocumented immigrants, there will still be some sort of priority that places more dangerous trouble-makers above those who are only living, working and providing for their families.

Once in deportation proceedings, the next question becomes: Can I still fix my papers? or How can I fix my papers? There are limited, but very powerful tools that can be used in immigration court to fight a deportation.  The first is called cancellation of removal and applies to those individuals who: have lived in the US (without papers) for 10 years or more, who have good moral character, who have not been convicted of certain serious crimes and whose removal would cause an exceptional and extremely unusual hardship to their legal permanent resident or US citizen spouse, child or parent.  A second defense to deportation can be through the asylum process, but it is very technical and has very high standards for approval.  A third defense is for those eligible for the DACA program.  

A final defense to deportation is the process in place for all eligible relatives of US citizens or legal permanent residents.  I refer to the green card process.  Absent serious criminal problems, if someone can successfully apply for and receive a green card approval through immigration services, this approval would automatically terminate the deportation proceedings and that person would be able to avoid being removed from the US.

There is one last aspect of immigration that is extremely important to those facing deportation as well as for those trying to become a legal permanent resident through immigration services; Bars to admissibility.  Admissibility is the legal concept for those who have all of the right parts to be able to become a permanent resident.  There are two main bars that affect immigrants; three and ten year bars for unlawful presence.  These penalize people who stay too long in unlawful status in the US and are triggered when someone leaves (voluntarily or through deportation) and then tries to apply for admission again.  

If someone is trying to fix their papers after a deportation, they have a difficult path ahead as prior deportations are probably the most difficult obstacles to becoming a permanent resident with potentially 10 year, 20 year or permanent bars to later entering the US legally.  

For example, if someone lived in the US without permission for years and is deported, they have the underlying 3 or 10 year bar for that “crime” but also have an automatic 10 year bar for the deportation.  If they have been deported more than once, they could also have a 20 year or permanent bar attached.  This is why many good immigration attorneys will attempt to get permission for their client to leave under voluntary departure (VD).  VD does not have a penalty as with deportations.  The person may still have a problem with the underlying 3 or 10 year bars, but will not have the deportation bar.  Although many bars can be removed through the various waiver processes, they are not easy to obtain and depend on the eligibility of the legal permanent resident or US citizen family remaining behind.
    
As you can see, deportation is a very complicated and serious problem that can affect anyone who is not a US citizen. If you or a family member are eligible for immigration benefits, if you have had any prior criminal problems, or any prior deportations, it is critical that you speak with an immigration specialist to discuss your case before you file for any process, before being approached by ICE or before you go to court.

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