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Deportation or Removal

Overview

Deportation, also known as removal, is a legal proceeding in a U.S. administrative court to determine whether or not an immigrant may remain in the U.S. Immigrants cannot be deported from the U.S. without first being given a deportation hearing. Those found to be deportable are forced to leave the U.S., however, immigrants have the option to appeal their case. Those who are deported are barred from returning to the U.S. for at least five years, and at a maximum for their entire life, unless a special waiver is granted.

The following are methods for gaining relief from deportation:

Cancellation of Removal (Legal Permanent Residents)

To qualify for Cancellation of Removal the immigrant must satisfy the following:

  • legal permanent resident for at least five years
  • continuous resident of the U.S. for at least seven years
  • never been convicted of an aggravated felony, and
  • is not a security risk to the United States.


Cancellation of Removal (Non Permanent Residents)

To qualify for Cancellation of Removal the immigrant must satisfy the following:

  • physical presence in the U.S. for a continuous period of ten years prior to the removal hearings
  • good moral character for ten years
  • not a security risk to the U.S., nor deportable under criminal grounds or marriage fraud or failure to register and falsification of documents, and
  • the removal would result in extremely unusual hardship to the spouse, parent, or child who is a U.S. citizen or a legal permanent resident.


Section 212(C) Waiver of Deportation (Legal Permanent Residents)

Section 212(c) provides relief for those who maintained residency in the U.S. for seven consecutive years. This provision is still in effect if the non-citizen is deportable or removable as a result of guilty pleas, particularly those pleas taken prior to April 24, 1996. Otherwise, the more strict standards of Cancellation of Removal apply.

To be eligible for Section 212(c) relief, a legal permanent resident must satisfy the following:

  • have 7 years of lawful permanent residence in the U.S.,
  • pled guilty to a crime before April 24,1996, and
  • have not been convicted of any aggravated felony, for which he/she was in jail or prison for five years or more.

Asylum

An immigrant can avoid removal by applying for asylum. To qualify for asylum the immigrant must prove a well-founded fear of persecution upon returning to their home country. The cause of this fear must be based on political opinion, religious belief, nationality, race, or membership in a particular social group. After one year as an asylee, the immigrant may be eligible to apply for a green card.

For more information on asylum, click here.

Adjustment of Status

An immigrant may avoid deportation by applying for an adjustment of status. A deportable immigrant who is the child, parent, spouse, or widow of a U.S. citizen may be eligible to apply to the judge to adjust his or her status to that of a legal permanent resident. An immigrant whose priority dates for permanent residence are current may also receive an adjustment of status. A spouse or child of the principal asylee may adjust to permanent residence status at the same time as the asylee, unless the asylee becomes divorced before final adjustment or the child becomes 21. But they retain their status as asylees. An immigrant who has an approved labor certification may adjust their status to that of legal permanent resident.


Violence Against Women Act (VAWA)

The Violence Against Women Act provides increased protection for immigrant women and children who are victims of domestic abuse by allowing them to remain in the U.S. This act relaxed certain standards of cancellation of removal for battered immigrant women who are the spouses of a U.S. citizen or legal permanent resident. For example, the amount of time required for being physically present in the U.S. was reduced to three years. Furthermore, it allows immigrant women to get a green card even if they divorced their abusing spouse without satisfying the 2 years conditional period requirement.

FAQ:

Q. What is a deportable crime?
A. Some simple misdemeanors, with no jail time are deportable offenses.

Q. How long does a deportation proceeding last?
A. It depends. The length of the deportation proceedings can last from
several months if the immigrant is in custody, to several years if the immigrant is out of custody.

Q. Can an immigrant leave the U.S. while in deportation proceedings?
A. In most cases an immigrant may not leave the U.S. while in deportation proceeding.

Q. If a judge orders deportation (removal from the U.S.) does the immigrant have to leave the country immediately?
A. After a judge orders deportation, the immigrant has 30 days to appeal the deportation order. If the immigrant decides not to appeal, then the INS will notify the immigrant to come to the deportation center at a given date and he/she will be deported then.

Q. Can a Legal Permanent Resident work while in deportation proceedings?
A. Yes. If the Legal Permanent Resident has applied for a relief, he/she can still work while in deportation proceedings.

Q. Can a non-permanent resident with a work authorization card work while in deportation proceedings?
A. Yes. If the non-permanent resident has applied for a relief, he/she can still work while in deportation proceedings.