Overview of Deportation/Removal Laws

What is deportation? It's commonly understood to mean when a non-citizen "alien" or foreign-born person is sent out of the United States by the immigration authorities. The preferred legal and technical term, however, is "removal."

Whatever word you use, there are many circumstances under which U.S. immigration authorities can enforce someone's departure from the United States. Examples include officers catching immigrants attempting to cross the U.S. border and immediately returning them, removals of undocumented or criminal aliens who have been arrested and detained, and denials of cases in immigration court (perhaps after several appeals).

Which U.S. Government Agencies Handle Removals/Deportations?

The agency on the front lines of immigration enforcement matters is Immigration and Customs Enforcement, or ICE. This agency would, for example, be the one to make arrests in the United States and to identify non-citizens who have been arrested for crimes and get them transferred into the immigration enforcement system after any prison time.

Everyday immigration matters, such as application processing, are handled by U.S. Citizenship and Immigration Services or USCIS. However, this agency can also send aliens into removal proceedings, most often when their applications for lawful permanent residence are unsuccessful and they have no other existing right to remain in the United States.

Customs and Border Protection (CBP) is also a player, guarding not only the U.S. border but a broad swath of land within it, plus other points of entry such as air and seaports. CBP has the power to do "expedited" removals (with no hearing before a judge) as well as to refer people to removal proceedings with the EOIR (discussed next).

The final decision maker in many cases is the immigration court or Executive Office for Immigration Review (EOIR). This is where non-citizens who don't already have an order of removal on their record may defend themselves against removal and potentially establish a right to remain in the United States.

To learn about the steps in the process, please see Overview of The Removal (Deportation) Hearings Process.

What Type of Person Can U.S. Immigration Authorities Deport (Remove)?

When most people think of an immigrant getting deported, they think of undocumented immigrants, often called illegal aliens. This mainly means people who either crossed the U.S. border illegally or stayed beyond their permitted time under the terms of a temporary (nonimmigrant) visa or after an entry on a visa waiver. Indeed, many undocumented aliens enter and are removed from the U.S. each year. But they are not the only aliens who can be deported.

Any immigrant who violates the terms of their lawful stay can be deported or removed from the United States. This might include a tourist who accepts a job from a U.S. employer (not allowed), a student in college who fails to pursue a full-time course of study, or a worker who switches to a new job, away from the employer who petitioned for them.

In addition, any immigrant who has not yet become a U.S. citizen, including a green-card holder (permanent resident) can be deported if they do something that's on the immigration law's list of grounds of deportability.

What Are the Grounds of Deportability?

The grounds of deportability are found in § 237 of the Immigration and Nationality Act (I.N.A.) or 8 U.S.C. § 1227. For example, non-citizens can become deportable if they:

• Commit certain types of crimes, most notably an aggravated felony; domestic violence; a crime of moral turpitude (CMT) committed within 5 years after being admitted to the U.S. or getting a green card, if the prison sentence was for at least 1 year; or two CMTs not arising out of a single scheme of criminal misconduct.
• Fail to advise USCIS of their changes of address within 10 days of moving (which can be done online).
• Are discovered to have committed marriage fraud.
• Helped smuggle other aliens into the United States.
• Are or have been drug abusers or addicts, or have been convicted of any drug-related violations other than other than a single offense involving possession of 30 grams or less of marijuana for personal use.
• Have committed document fraud.
• Present potentially serious adverse foreign policy consequences to the United States, in the reasonable judgment of the U.S. Secretary of State.
• Have falsely claimed to be a U.S. citizen, for example in voting in a U.S. election.

This is just a quick overview of these grounds. Do not rely on this list to analyze your case, but look at the law itself, linked to above, and consult with an experienced U.S. immigration attorney.

Also note that despite the seriousness of being accused of being deportable, some grounds can be overcome, most likely by requesting a waiver.

What Rights Does an Immigrant Facing Removal Have?

Non-citizens have the right to a lawyer, as well as other rights under the U.S. Constitution. The immigration authorities cannot simply deport someone without providing a chance to be heard.

Of course, the authorities often try to make the process go quickly, by asking the immigrant to sign something agreeing to depart without a hearing. In some cases, when the immigrant really is in the U.S. illegally with no defense to removal, leaving voluntarily can be the best way to go, because it avoids having an order of deportation on one's record. (This is legally different than the "self-deportation" promoted by the Trump Administration, which despite the promises of possible reentry, not to mention a $10,000 subsidy, is not found within the law and has not yet been shown to help those who accept it. See the concerns expressed in "Trump's new offer to undocumented immigrants is a bait-and-switch.")

Anyone who believes they might have a right to remain in the United States should insist on their right to a lawyer (which they will, unfortunately, have to pay for on their own) and to a hearing on the merits of their case.

A non-citizen who hasn't yet entered the United States does not have the same rights, and is subject to expedited removal. In other words, the person can simply be refused entry at the border unless they have a legitimate fear of persecution if forced to return to their home country. In the latter case, the immigration officials must allow the person's asylum claim to be heard; though under the so-called "Migrant Protection Protocols" instituted under the first Trump Administration, the initial hearings might be held in Mexico if at all. Soon after taking office for a second term, Trump issued an executive order called GUARANTEEING THE STATES PROTECTION AGAINST INVASION that declared migration across the southern border to be an invasion, and cancelled all existing appointments.

How Are Immigration Court Hearings Conducted?

Immigration court proceedings are administrative, meaning they're less formal than ordinary court proceedings, and the usual rules of evidence don't apply. Although traditionally they have been held in a courtroom, more recently it has become common to hold them telephonically or using an online videoconferencing system known as Webex. The judge may suggest a virtual hearing, or the foreign national (ideally through their attorney) may file a motion to request it.

The U.S. government will be represented by its own attorney. The judge as well as both attorneys may ask questions of the immigrant, and either attorney may bring in witnesses to testify.

The hearing should last as long as is needed to present and hear all the evidence. The judge may issue a decision at the end of the hearing, or later. If it's a negative decision, the judge will issue an order of removal, which becomes final as soon as the allotted time for appeal is over. Negative decisions can be appealed to the Board of Immigration Appeals (B.I.A.) by either party, and then through the federal court system.