DEPORTATION

Deportation (also called "removal") occurs when the federal government formally removes an alien from the United States for violations of a number of immigration or criminal laws, described in more detail below. Once deported, an alien may lose the right to ever return to the United States, even as a visitor.

Removal is a legal proceeding, and an alien who is subject to this procedure has legal rights prior to being removed from the country, including the right to challenge the removal itself on procedural or constitutional grounds. Following is a discussion of the removal process.

Classes of Deportable Aliens

Any alien that is in the United States may be subject to deportation or removal if he or she:

• Is an inadmissible alien according to immigration laws in effect at the time of entry to the U.S. or adjustment of nonimmigrant status;
• Is present in the U.S. in violation of the Immigration and Nationality Act or any other U.S. law;
• Violated nonimmigrant status or a condition of entry into the U.S.;
• Terminated a conditional permanent residence;
• Encouraged or aided any other alien to enter the U.S. illegally;
• Engaged in marriage fraud to gain admission to the U.S.;
• Was convicted of certain criminal offenses;
• Failed to register or falsified documents relating to entry in to the U.S.;
• Engaged in any activity that endangers public safety or creates a risk of national security;
• or Engaged in unlawful voting.
  

Deportation or Removal Process

A Notice to Appear (NTA) is issued by the U.S. Immigration and Customs Enforcement, served to the alien, and filed with the immigration court. In addition to containing general information about the immigrant (name, country of origin, etc.), the NTA also states the reasons for the deportation or removal. A hearing is scheduled, at which the immigration judge asks if the alien is ready to proceed with the case, or if he or she needs time to secure an attorney. If the alien needs time to secure an attorney, a hearing is scheduled for a later date. Once the alien has an attorney, or has elected to proceed without one, the alien will be asked by the immigration judge to verify the contents of the NTA. If the judge determines that the information in the NTA is correct and that the alien can be deported, the alien is given the opportunity to apply for any form of relief from deportation. If the alien is eligible for a form of relief and decides to apply for it, an individual hearing date is scheduled. If the alien is not eligible, deportation will be ordered. If an individual hearing is held, the alien will be given the opportunity to give testimony and have witnesses testify on his or her behalf.

At the conclusion of the hearing, the immigration judge will either make an oral decision on the matter, or will release a written decision at a later date. If the alien has been ordered deported, the alien has 30 days from the date of the decision to appeal the decision to the Board of Immigration Appeals (BIA). If the BIA decides against the alien, the alien has the option of appealing to the appropriate U.S. Court of Appeals. The immigration service has the opportunity to appeal an unfavorable individual hearing decision, but may not appeal an unfavorable decision by the BIA. An appellate court decision can be appealed to the U.S. Supreme Court by either the alien or the immigration service.

The Removal Process

Within the U.S. Department of Justice, more than 200 Immigration Judges located in 53 Immigration Courts nationwide conduct proceedings and decide individual removal cases. Removal proceedings account for approximately 80 percent of Immigration Judges' caseload. Federal rules of evidence are inapplicable in Immigration Court; thus, an Immigration Judge has greater authority to consider most kinds of evidence in deciding a case. The types of proceedings an Immigration Judge may preside over are briefly discussed below.

Removal Hearings

Removal hearings are conducted to determine whether certain aliens are subject to removal from the country. The distinction between exclusion and deportation proceedings has been eliminated, and aliens subject to removal from the United States are now all placed in removal proceedings. Thus, the removal proceeding is now generally the sole procedure for determining whether an alien is inadmissible, deportable, or eligible for relief from removal.

The Department of Homeland Security (DHS), which absorbed the functions of the Immigration and Naturalization Service (INS), is responsible for commencing a removal proceeding. If the DHS alleges a violation of immigration laws, it has the discretion to "serve" the alien with a charging document, known as a Notice to Appear. This document orders the individual to appear before an Immigration Judge, and advises him or her of, among other things:

Nature of the proceedings against the individual; Individual's alleged acts that violated the law; Individual's right to an attorney; and Consequences of failing to appear at scheduled hearings. Removal proceedings generally require an Immigration Judge to make two findings: (1) a determination of the alien's removability from the United States, and (2) whether the alien is eligible for a form of relief from removal. For more information on the types of relief available to an alien, please see the Forms of Relief from Removal factsheet.

Bond Redetermination Hearings

An Immigration Judge conducts a bond redetermination hearing for aliens who are in DHS detention. The alien makes a request to the Immigration Judge to lower or eliminate the amount of the bond set by the DHS. These hearings are generally informal and are not a part of the removal proceedings. This decision can be appealed (by either the alien or by DHS) to the Board of Immigration Appeals (BIA).

Withholding-Only Hearing

An Immigration Judge conducts a withholding-only hearing to determine whether an alien who has been ordered removed is eligible for withholding of removal under U.S. law or the U.N. Convention against Torture (CAT)

§ 1240.21 Suspension of Deportation and Adjustment of Status Under Section 244(a) of the Act (as in effect before April 1, 1997) and Cancellation of Removal and Adjustment of Status Under Section 240A(b) of the Act for Certain Nonpermanent Residents. (Added 10/3/97, effective 10/1/97; 62 FR 51760 ) (Revised 9/30/98; 63 FR 52134 )

(a) Applicability of annual cap on suspension of deportation or cancellation of removal . (1) As used in this section, the term cap means the numerical limitation of 4,000 grants of suspension of deportation or cancellation of removal in any fiscal year (except fiscal year 1998, which has a limitation of 8,000 grants) pursuant to section 240A(e) of the Act.

(2) The provisions of this section apply to grants of suspension of deportation pursuant to section 244(a) of the Act (as in effect before April 1, 1997) or cancellation of removal pursuant to section 240A(b) of the Act that are subject to a numerical limitation in section 240A(e) of the Act for any fiscal year. This section does not apply to grants of suspension of deportation or cancellation of removal to aliens described in section 309(c)(5)(C)(i) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), as amended by section 203(a)(1) of the Nicaraguan Adjustment and Central American Reli ef Act (NACARA), or aliens in deportation proceedings prior to April 1, 1997, who apply for suspension of deportation pursuant to section 244(a)(3) of the Act (as in effect prior to April 1, 1997). The Immigration Court and the Board shall no longer issue conditional grants of suspension of deportation or cancellation of removal as provided in 8 CFR 1240.21 (as in effect prior to September 30, 1998).

(b) Conditional grants of suspension of deportation or cancellation of removal in fiscal year 1998 cases . (1) Conversion to grants. Except with respect to cases described in paragraphs (b)(2) and (b)(3) of this section, EOIR shall grant suspension of deportation or cancellation of removal without condition prior to October 1, 1998, to the first 8,000 aliens given conditional grants of suspension of deportation or cancellation of removal (as determined by the date of the immigration judge's order or, if the order was appealed to the Board, the date such order was entered by the Board.)

(2) Treatment of certain nationals of Nicaragua and Cuba who received conditional grants of suspension of deportation or cancellation of removal on or before September 30, 1998 . (i) NACARA adjustment request . An application for suspension of deportation or cancellation of removal filed by a national of Nicaragua or Cuba that was granted on a conditional basis on or before September 30, 1998, shall be deemed to be a request for adjustment of status pursuant to section 202 of NACARA ("NACARA adjustment") for the period starting September 30, 1998 and ending December 31, 1998. The Service shall provide the applicant with notice of the date, time, and place at which the applicant must appear before a Service officer to perfect the request for NACARA adjustment. Such notice shall include an attestation form, Attestation of Alie n and Memorandum of Creation of Record of Lawful Permanent Residence, Form I-895, regarding the applicant's eligibility for NACARA adjustment.

(ii) Submission of documentation . To perfect the request for NACARA adjustment, the applicant must appear before a Service officer on the date scheduled with the following documentation:

(A) The order granting suspension of deportation or cancellation of removal on a conditional basis issued on or before September 30, 1998;

(B) A completed, but unsigned Form I-895, which the applicant shall be required to sign and to attest to the veracity of the information contained therein in the presence of a Service officer;

(C) Any applicable applications for waiver of inadmissibility; and

(D) Two "ADIT-style" photographs; meeting the specifications in the instructions attached to Form I-895.

(iii) Waiver of documentation and fees . The provisions of § 1245.13(e) and (f) of this chapter relating to documentary requirements for NACARA adjustment are waived with respect to an alien seeking to perfect a request for adjustment of status pursuant to paragraph (b)(2) of this section. In addition, the fees for the NACARA adjustment and for any applications for waivers of inadmissibility submitted in conjunction with perfecting a request for NACARA adjustment shall be waived.

(iv) NACARA adjustment determination . In determining an applicant's eligibility for NACARA adjustment under the provisions of paragraph (b)(2) of this section, unless the Service officer before whom the applicant appears is not satisfied that the applicant is admissible to the United States in accordance with section 202(a)(1)(B) of NACARA, and has continuously resided in the United States from December 1, 1995, through the date of appearance before the Service officer (not counting an absence or absences from the United States totaling 180 d ays or less or any absences that occurred pursuant to advance authorization for parole (Form I-512 issued by the Service)), the Service officer shall accept an alien's attestation of admissibility and/or continuous physical presence as sufficient evidence that the applicant has met the admissibility and/or continuous physical presence requirement for NACARA adjustment. If the Service officer grants NACARA adjustment, then the Service officer shall create a record of lawful permanent residence and the prior order granting suspension of deportation or cancellation of removal on a conditional basis shallbe automatically vacated and the deportation or removal proceedings shall be automatically terminated. The Service officer (whose decision in this regard is not subject to appeal) shall not adjust the applicant to lawful permanent resident status pursuant to section 202 of NACARA if:

(A) The Service officer is not satisfied that the applicant is eligible for NACARA adjustment and so indicates on the attestation

form; or

(B) The applicant indicates on the attestation form that he or she does not wish to receive NACARA adjustment.

(v) Automatic conversion . If the Service officer does not adjust the applicant to lawful permanent resident status pursuant to section 202 of NACARA, the applicant's conditional grant of suspension of deportation or cancellation of removal shall be automatically converted to a grant of suspension of deportation or cancellation of removal. Upon such a conversion, the Service shall create a record of lawful permanent residence based upon the grant of suspension of deportation or cancellation of removal.

(vi) Failure to appear . An alien who fails to appear to perfect his or her request for NACARA adjustment shall have his or her conditional grant of suspension of deportation or cancellation of removal automatically converted by the Immigration Court or the Board to a grant of suspension of deportation or cancellation of removal effective December 31, 1998.

(3) Conditional grants not converted in fiscal year 1998 . The provisions of paragraphs (b)(1) and (b)(2) of this section for granting relief shall not apply with respect to:

(i) Any case in which a conditional grant of suspension of deportation or cancellation of removal is pending on appeal before the Board as of September 30, 1998 or, if the right to appeal to the Board has not been waived, the time for an appeal has not expired. After the Board issues its decision or the time for appeal has expired, the conditional grant shall be converted to a grant when a grant is available.

(ii) Any other conditional grant not described in paragraphs (b)(1), (b)(2) or (b)(3)(i) of this section, which was not converted to a grant in fiscal year 1998. Such a conditional grant shall be converted to a grant when a grant is available.

(4) Motion to reopen . The Service may file a motion to reopen within 90 days after the alien is issued a grant of suspension of deportation or cancellation of removal pursuant to paragraphs (b)(1), (b)(2), or (b)(3) of this section, if after the issuance of a conditional grant by the Immigration Court or the Board the applicant committed an act that would have rendered him or her ineligible for suspension of deportation or cancellation or removal at the time of the conversion.

(5) Travel for aliens conditionally granted suspension of deportation or cancellation of removal . If the Immigration Court or the Board granted suspension of deportation or cancellation of removal on a conditional basis or, if the conditional grant by the Immigration Court was appealed to the Board and the Board issued such a conditional grant, the alien shall retain the conditional grant of suspension of deportation or cancellation of removal upon return to the United States following a temporary absence abroad and be permitted to resume completion of his or her case, provided that:

(i) The alien departed on or before September 30, 1998 with or without a grant of advance parole from the District Director; or

(ii) The alien, prior to his or her departure from the United States after September 30, 1998, obtained a grant of advance parole from the District Director in accordance with section 212(d)(5) of the Act and § 1212.5 of this chapter and complied with the terms and conditions of the advance parole.

(c) Grants of suspension of deportation or cancellation of removal in fiscal years subsequent to fiscal year 1998 . On and after October 1, 1998, the Immigration Court and the Board may grant applications for suspension of deportation and adjustment of status under section 244(a) of the Act (as in effect prior to April 1, 1997) or cancellation of removal and adjustment of status under section 240A(b) of the Act that meet the statutory requirements for such relief and warrant a favorable exercise of discretion until the annual numerical limitation has been reached in that fiscal year. The awarding of such relief shall be determined according to the date the order granting such relief becomes final as defined in §§ 1003.1(d)(3) and 1003.39 of this chapter. (Amended 1/22/01; 66 FR 6436 )

(1) Applicability of the annual cap . When grants are no longer available in a fiscal year, further decisions to grant or deny such relief shall be reserved until such time as a grant becomes available under the annual limitation in a subsequent fiscal year. Immigration judges and the Board may deny without reserving decision or may pretermit those suspension of deportation or cancellation of removal applications in which the applicant has failed to establish statutory eligibility for relief. The basis of such denial or pretermission may not be based on an unfavorable exercise of discretion, a finding of no good moral character on a ground not specifically noted in section 101(f) of the Act, a failure to establish exceptional or extremely unusual hardship to a qualifying relative in cancellation cases, or a failure to establish extreme hardship to the applicant and/or qualifying relative in suspension cases.

(2) Aliens applying for additional forms of relief . Whether or not the cap has been reached, the Immigration Court or the Board shall adjudicate concurrently all other forms of relief for which the alien has applied. Applications for suspension of deportation or cancellation of removal shall be denied in the exercise of discretion if the alien is granted asylum or adjustment of status, including pursuant to section 202 of NACARA, while the suspension of deportation or cancellation of removal application is pending. Where an appeal of a decision granting a sylum or adjustment is sustained by the Board, a decision to deny as a matter of discretion an application for suspension of deportation or cancellation of removal on this basis shall be reconsidered.

Delaying Deportation/Removal:

"Stay" Proceedings When an alien is detained, has an action pending before the Board of Immigration Appeals (BIA), and is in "danger" of being immediately deported or removed, the alien, or the alien's attorney or representative, may request a stay of deportation/removal from the BIA.

Once the BIA has received a stay request, the BIA is faced with an emergency situation in which the stay request must be given immediate attention and priority over other work.

Conditions that Must Be Met for the BIA to Consider a Request for a Stay of Deportation/Removal 1. Is the alien in the physical custody of U.S. Citizenship and Immigration Services (USCIS)? If an alien is detained by the USCIS and deportation/removal is imminent, the BIA will consider the stay request promptly. A stay will only be considered once the alien has actually reported and is in the physical custody of the USCIS. It is the responsibility of the attorney to call and inform the BIA when the alien is in the custody of the USCIS.

2. Is there an action pending before the BIA - does the BIA have jurisdiction? A motion to reopen or reconsider a prior Board decision, or an appeal from an Immigration Judge's denial of a motion must have been filed with the BIA (Clerk's Office Appeals Unit). Generally, there is an automatic stay when a direct appeal is filed from an Immigration Judge's order. However, there is no automatic stay when (a) the alien clearly waived appeal at the hearing, then files an appeal, or (b) when a direct appeal is taken from an Immigration Judge's order that was entered in absentia.

Procedures in Stay Requests

An appeal or a motion must be properly filed with the Clerk's Office at the BIA. The BIA will accept filings in person only at the window of the Office of the Clerk, on the 13th Floor of Building 3 at EOIR's Skyline Office Complex in Falls Church, VA. This applies to the USCIS as well as the public.

A stay request can be submitted to the BIA in writing or can be requested telephonically through a BIA secretary.

FAX stay requests will be accepted ONLY: If necessary, i.e. because the alien's scheduled deportation does not allow enough time for the stay request to be delivered by other means. If there is an underlying motion pending at the BIA. If the BIA asks that the stay request be sent by FAX.