by Amelia Wong, Legal Intern
Who can be deported?
Anyone who is not a United States citizen can be deported. This means that Green Card holders and foreign spouses of United States citizens could be deported, as well as any other non-citizen.
Why are people deported?
People who are not United States citizens can be deported for various reasons. Individuals may violate immigration laws by overstaying a visa, entering illegally, having false papers, joining in a fake marriage, or any number of other reasons. In certain cases, an individual could be deported for being an inadmissible alien by having serious physical or mental problems, being a Nazi or terrorist, or having past criminal convictions.
Individuals may also be deported for committing serious crimes or immoral behavior, which may include domestic violence, tax evasion, drug use, or felonies.
Lastly, an individual can be deported by simply having a previous deportation order that was not carried out.
How is deportation handled?
Because authorities may not notice when individuals are not citizens and are not legally allowed to be in the United States the deportation process is not automatic.
Although the Immigration and Naturalization Service handled deportation until 2002, the Department of Homeland Security now handles deportations.
At removal hearings, the department has to prove that the individual is in the United States unlawfully.
The deportation process begins when an individual receives a written notice, which notifies him or her of deportation. This written notice is better known as notice to appear and/or a notice of hearing. The notice also tells the individual that a removal hearing will follow.
The removal hearing is a court procedure where an individual can tell the judge why he or she should be able to stay. If the hearing is skipped, the judge decides whether the individual is allowed to stay or not. If the judge decides to deport the individual in his or her absence, it will take ten years for the individual to be able to fight his or her case through the court system.
During this time, some people are taken into immigration detention whereas others may be allowed to stay at home until the hearing.
Can a person fight against deportation?
An individual may choose to fight deportation at the removal hearing. This can be done in many ways. One may agree, for example, that he or she is in the United States illegally but claim that he or she should be allowed to stay for various reasons. These reasons could be that the government made a mistake and the individual does not actually qualify for deportation, the individual has lived in the country for many years and is of good “moral character”, or the individual has at least one family member who is a citizen or lawful permanent resident of the United States and who would feel the individual’s removal to be a unnecessary hardship.
Another way to fight deportation would be for the individual to argue that they have been in the United States for less than a year, and should be allowed asylum from persecution in his or her home country due to race, religion, nationality, political beliefs, or social group.
Lastly, an individual may choose to prove that he or she is a lawful permanent resident who has committed a crime, but the crime was not that serious and deportation would be more harmful than staying in the United States.
What happens if the judge decides on deportation?
If the judge does decide to deport an individual, he or she can appeal it; there is a special process for appealing in immigration court.
After the removal hearing, the individual must appeal to the Board of Immigration Appeals. This board is a special administrative court that only hears appeals of immigration matters.
During the time of appeal, the individual may be held in custody by immigration authorities or may be released from custody depending on whether or not the court finds him or her to be a risk to flee.
What happens if the first appeal fails?
If the Board of Immigration Appeals rules against the individual, he or she may choose to appeal its decision to the federal appeals court in his or her area. The individual can also choose to appeal to the appeals court, which will go to the Supreme Court. However, the Supreme Court takes very few immigration cases and will focus only on those that may improve United States law.
Does an Immigration lawyer help?
Appeals have the risk of being very expensive and could force the individual to be held in detention for a prolonged period of time. Having the help of an immigration attorney is recommended in appealing an immigration case in order to assure the quickest, best outcome possible for the individual and his or her family.
Many people choose to receive help from an immigration lawyer, but unlike the criminal court, it is not an individual’s right to have a lawyer in immigration court. Although there are many organizations and groups who will help families in their time of need, the government will not provide a family with a free immigration lawyer.
Do you want more information?
For more information or to schedule a free consultation please contact Misiti Global, PLLC by Nicklaus Misiti at (212) 537-4407 or by filling out the convenient form on our website http://www.misitiglobal.com.