The prospect of facing deportation is not pretty. It can often seem like the end of the road. The end of the dream.
You don’t have to lie down and die though. There’s a lot that you can still do to save your residency. You can start by learning what deportation is all about.
What is deportation?
Deportation occurs when a person is removed from the territory of a country by the immigration authorities. It is usually carried out by detaining the person and returning him to his country of origin.
In the case of the U.S, deportation is handled principally by Immigration and Customs Enforcement (ICE) and the Executive Officer for Immigration Review. The U.S. Citizenship and Immigration Services (USCIS).
Who can be deported?
Contrary to popular belief, it is not only those who enter into a country illegally that can be deported. Of course, this category of persons as well as those who overstay their temporary welcome in the country, can be deported.
Generally, any immigrant that violates the terms of their stay in the U.S can be deported. Others include any person who has failed to do something that they are required to do to continue staying in the U.S as well as persons that do something on the immigration law’s grounds of deportability. For instance, a person who is resident in the U.S. on a fiancé(e) visa is expected to marry within 90 days of their arrival in the U.S.
Grounds of Deportability
This refers to the instances when a person can be deported from the U.S. they include:
- Committing crimes. This would include aggravated felonies, domestic violence and crimes of moral turpitude (CMT). CMTs relate to crimes like lying on oath and their commission within 5 years after admission into the U.S. or collection of a green card may be a ground for deportation. Especially if the prison sentence is for at least one year.
- Marriage fraud
- Document fraud
- Smuggling other aliens into the country
- Failing to notify the USCIS of a change of address within ten days of moving
- Conviction for drug related violations
- Falsely claiming to be a U.S. citizen
These grounds are not exhaustive though. You can also overcome some grounds by requesting a waiver.
What rights do you have when facing deportation?
The rights available to you depend on whether you have entered into the U.S. for a period before the removal. It would also depend on whether you have previously been resident in the country.
If you have not yet entered the U.S. i.e. if you tried to enter illegally and got caught (an arriving alien), you would be subject to expedited removal. An exception may be made if you have plans to declare asylum.
If you have been previously resident, you would have:
- The right to call a lawyer
- The right to have your case heard.
- The right to remain in the U.S. pending the resolution of the case against you.
- The right to request a bond hearing.
Typical defences available in deportation proceedings
- Asylum/Withholding of Removal. If there is a huge likelihood that you will face persecution in your home country, you can claim asylum.
- Adjustment to Permanent Resident Status. If your prior application for adjustment of status is successful, the deportation proceedings will not be legal.
- Motions for Administrative Closure based on eligibility for Unlawful Presence waiver (I-601A).
- U Visas for individuals who were helpful to police/prosecutor with a criminal investigation.
- Victim of Domestic Violence (VAWA) cancellation of removal. A victim of domestic violence at the hands of a U.S. citizen can have the removal cancelled.
- If you are in deportation proceedings because of a criminal conviction, you may be eligible to file a motion to vacate criminal conviction.
- Citizenship (some foreign-born individuals may unknowingly be U.S. citizens).
- Voluntary Departure
What is a bond hearing?
Immigrants generally have a right to challenge detention by the immigration authorities. You can request a bond hearing for temporary freedom while the case lasts.
Unfortunately, this right has been limited by Congress though. Thus, depending on your immigration status and criminal history, you may be subject to mandatory detention.
Fortunately, you can also challenge any allegation that you should be subject to mandatory detention. If you are successful, the court will consider your request for a bond hearing.
A bond hearing is a procedure that allows you to be free from detention pending the determination of the deportation proceedings. This, right, as mentioned earlier, may be limited by criminal convictions.
In order to determine your bond request, the court will consider:
- Whether you have community and family ties in the United States
- Property that you own in the U.S
- Your financial ability to pay a bond
- Your membership in community organizations and/or volunteer work
- Your employment history in the United States
- Your manner of entry to the United States and lawful status in the United States
- Your criminal history
If your application for a bond is successful, you will be released temporarily. Once released though, you must attend all court proceedings on your matter or the bond will be revoked.
If your request is unsuccessful, you can also appeal the decision. The fact that you have appealed the refusal of a bond does not mean that the deportation case will halt though. It will continue on the side.