Is it possible to appeal an order of deportation in the US?

Is it possible to appeal an order of deportation in the US?

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As immigration attorneys, we can assure you that a foreign national can make a life in the United States (US) and that there are several avenues to do so, which we have detailed in numerous articles in our blog.

The most important thing to do is to know the particular conditions to immigrate to the US and make them fit with those established by the Immigration and Nationality Act (INA); this will be the primary reference for anyone who wishes to migrate and live the American dream.

But it is also necessary to maintain exemplary behavior and the expectations of the authorities to remain in the country. Otherwise, immigration agents will take action and deport anyone who incurs crimes, no matter how minor. 

And while it is possible to appeal to avoid deportation, the likelihood of this proceeding will depend on various factors. These include the nature and seriousness of the offense, where it occurred, and, of course, the judge’s interpretation of the case.

In the following article, we talk a bit about the offenses that typically involve deportation for documented and undocumented immigrants. And, of course, we offer guidance on the steps to follow in these cases.

What are deportation offenses?

According to the INA, anyone who has entered the US legally, whether by Green Card or nonimmigrant VISA, can remain in the country without any problems with the authorities. It, of course, as long as their behavior is impeccable and they avoid violating national laws. 

However, obtaining a Green Card or a nonimmigrant VISA does not eliminate the risk of deportation. On the contrary, legal status entails a commitment strictly monitored by the authorities to protect the country’s sovereignty. 

The same law indicates compelling grounds for a non-citizen born in the US to be deported to their country of origin. These are known as deportation offenses or deportable offenses. 

Types of deportable offenses

There are a wide variety of deportation offenses. Still, for clarity, we classify them according to the person’s status, i.e., whether they are undocumented or permitted to live in the US.

Deportation Offenses for Undocumented Immigrants

This category includes those persons who have not been granted formal permission by the US immigration authorities to inhabit the country. This simple fact implies a deportation offense because the uninformed or unapproved presence in US territory is contrary to the provisions of US immigration laws.

Also included here are those waiting for a permit to be legally in the US without a notification that validates it, or worse, those who made the Green Card application process but have yet to receive a denial notification from the authority.

When this happens, the person becomes inadmissible to the country because, for some reason, they did not meet the minimum requirements to stay legally. With this, they automatically become deportable, and proceedings may begin even without the person knowing it. 

The institution in charge of dealing with these situations is Immigration and Customs Enforcement (ICE). In any of the cases described above, its officials are in order to contact the affected persons and take the measures indicated by law.

Deportation offenses for documented immigrants

On the other hand, there are documented immigrants, who are those who have a Green Card or other authorization that validates their presence in the US as we indicated at the beginning, the simple fact of having it does not imply exemption from the risk of deportation since they must still respect the national laws even more rigorously.

However, a person with these permits to be deported must have committed severe violations, the most common deportation offenses in these cases.

Document falsification

Document falsification is one of the most sensitive crimes for documented immigrants, especially if it is through this that they have achieved legal status in the country. It also applies if it is done to help someone enter the US illegally or to obtain permission fraudulently. 

Fraud

One of the most common frauds listed in the deportation offenses is a marital union for purely immigration purposes. It is precisely why the authorities are comprehensive in obtaining permanent residency through marriage. Individuals must present evidence that their relationship has a track record and is valid beyond immigration interests.

It includes more minor situations, such as failure to report changes in data necessary to the immigration authorities promptly. For example, a loss to notify a change of address to the USCIS within ten days of its occurrence.

But it also includes more sensitive cases, such as impersonating a US citizen to vote in elections.

Use of weapons or illegal drugs

And, of course, convictions attributed to illicit drug use and carrying weapons are also deportable offenses. In many cases, these may also fit within the conditions of inadmissibility, especially for those diagnosed with addiction.

Authorities involved 

In immigration matters, it is essential to know the entities that regulate the issue. It is well known that the US Citizenship and Immigration Services (USCIS) is in charge of receiving applications for permits and adjustment of status. Still, when it comes to deportation, other entities come into play.

The Department of Homeland Security (DHS) is the institution in charge of deportation proceedings in the US. Therefore, if conditions justify this measure, DHS will serve non-U.S. citizens with what is known as a Notice to Appear (NTA).

Notice to Appear (NTA)

As the name implies, a Notice to Appear is a summon for the immigrant who has incurred the deportation offense to appear before an immigration judge.

This hearing aims to review the grounds behind the deportation order and, of course, to accept or reject them to decide whether to proceed. We can divide this process into two parts: initial or master calendar hearing and individual or merits hearing.

What to do at the initial hearing?

That said, it is of great importance that the accused immigrant attends the first hearing in immigration court. It is also necessary to be well prepared, so we explain what to expect at this first step.

It consists of verifying the integrity of the accusations against the person in question. The immigration judge will ask whether you accept or deny the charges against you in the Notice to Appear.

In general, the person is expected to deny the charges and express an interest in applying for relief from deportation. That is, to apply for asylum, adjustment of status, or cancellation of removal, for which they should present compelling evidence and arguments.

What to do at the merits hearing?

The individual hearing is the one in which the background of the possible deportation case is evaluated.

It is when the accused person must present a valid and compelling argument to counter such a scenario and allow them to remain in the US lawfully. However, the government, the issuer of the Notice to Appear, also has the right to present evidence to validate the need for deportation.

The immigrant must rely on the scenario that best fits their needs. Recall that the immigration application may be based on a close family relationship, including marriage, risks upon return to the home country, or even the length of time spent in the US, along with specific exceptions. Depending on the case, it may be possible to apply for relief from removal.

The quality of the evidence presented will help the judge make a decision. The judge may either approve the person’s deportation or order the government not to enforce it since the arguments are valid.

Is it possible to appeal a deportation order?

If things do not turn out so positively during the hearing and even with the evidence presented, the judge decides that the deportation proceeds, there is still a recourse to appeal.

There are two steps. Appeal to the Board of Immigration Appeals (BIA) and, ultimately, appeal to the federal courts.

Appealing deportation through the BIA

The BIA is the highest administrative court for immigration matters in the United States. Therefore, if something does not turn out well for an immigrant with a deportation order in court, this body would be responsible for a new review of the immigration judge’s decision.

The outcome could be either positive or negative. For example, it could extend the affected immigrant’s time in the country. At the same time, their legal status is being processed, cancel the deportation order, or even offer protection as an exceptional case. However, it could also find that the judge’s decision to proceed with removal is appropriate.

If the deportation decision was in error, you still have to go back before an immigration judge to issue a new one formally. But if the BIA denies the deportation appeal, you must go to federal court.

Appealing deportation through the federal courts

It is the last option for appealing an appeal order approved by a judge. While it is time-consuming and, to be frank, late, it brings advantages even if the courts reject it. For example, extending the stay in the US by a few years can help with planning and economic issues.

As expected, it will be necessary to submit a document describing the situation and why even the BIA upheld the deportation order. If the argument is good, the court will agree to retry the case, which the immigrant and their attorney must explain orally.

If the court is convinced, it will either remand the case back to the immigration court or, in the best-case scenario, grant relief from deportation or asylum. However, this can take quite some time, even years.

All that has been said so far makes it clear that US immigration law is very detailed about the conditions that apply to deportable offenses. Although it is possible to appeal in many cases, it would be ideal to avoid having to incur in any of them to live legally in the territory.

If you do, it is worth remembering that the regulation is subject to geographic location and the interpretation of immigration judges. For this and many other reasons, it is essential to have the proper legal advice to avoid deportation. The Kannan Law team can offer you this and legal accompaniment in other cases. By clicking here, you can contact us and tell us your story.