Under what circumstances can deportation from the United States take place?
The United States of America is an unusual nation insofar as its residents’ ethnicity has no relationship with their American nationality. With the exception of the descendants of North America’s indigenous populations, all citizens and legal residents of the United States are either themselves immigrants or are the descendants of immigrants from other countries. The United States is therefore described as a “nation of immigrants,” and that characteristic is intrinsic to Americans’ self-identity. The words of Emma Lazarus inscribed upon the Statue of Liberty in New York Harbor reflect the American ideal:
“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”
In reality, however, America’s “golden door” was never fully open to all those who wished to forge a new life outside the countries of their birth, and since the end of decades of mass European migration with the passage of the Immigration Act of 1924, immigration to the USA has been highly restricted. Nonetheless, since most Americans are themselves here as a result of immigration, the forced removal of new immigrants from our midst is a controversial and emotionally fraught matter.
Deportation, legally known as “removal,” occurs when a non-citizen is ordered to leave the United States. There are several reasons a non-citizen may be deported. Usually deportation occurs as a result of a violation of immigration laws, typically because the immigrant either entered the US without authorization, or overstayed after legal entry, or worked in the US without possessing a visa that authorized employment. Far less often, deportation occurs as a result of the non-citizen committing a serious crime. Deportation is very traumatic to the affected immigrants, who may have established homes, families, and social networks in the United States, and who in many cases no longer have any of the above in their homelands. Since most immigrants enter the United States seeking to work, deportation also can be disruptive to their employers, who face the unexpected loss of valuable employees. From every perspective, the threat of deportation is a serious matter and should not be taken lightly. If you are embroiled in a situation involving possible deportation, it is essential that you consult with an attorney experienced in dealing with immigration matters.
How Undocumented Immigrants Come to the Attention of Authorities
Some people find the concept of deportation so frightening that they fear even discussing the matter, but educating yourself about the deportation process and some of the types of relief available may help to protect you or your valued employee. Knowledge of the pitfalls that can lead to deportation may help you avoid them. Ways that may expose non-citizens to prosecution include:
- Apprehension at the border, whether by land, sea, or air
- Phoned-in tips, though these are rarely investigated
- Workplace raids
- Checks on immigration status of people in jail
- Failed applications for asylum, green cards or naturalizationIt should be noted that failed applications for citizenship are not in themselves grounds for removal, although it is possible that in processing such applications criminal convictions or other grounds for deportation may come to light. More often, however, the unsuccessful attempt to obtain a work visa or permanent resident visa leads to a removal proceeding simply because there is no basis for the immigrant’s continued presence in the United States. There are many variables that come into play regarding whether an individual is entitled to a hearing concerning potential deportation.
Not everyone is permitted to a hearing, and the due process rights it entails, regarding deportation. Individuals excluded from this option include:
- Those who enter the U.S. under the Visa Waiver program — who have agreed to the stipulation that any violation of the terms of the agreement can result in removal without a hearing
- Aliens who enter the country without documentation
- Aliens who attempt to defraud the immigration authorities during entry
There are, however, cases in which, although the immigration court can deport someone, they choose not to. An important example of this is the recent Deferred Action for Childhood Arrivals (DACA) enacted by the Obama Administration. While deferred action does not provide any additional legal benefits, it does postpone deportation, at times indefinitely.
Stay of Removal
There are two types of stays of removal: automatic and discretionary. In both cases, the Department of Homeland Security (DHS) grants temporary postponement of deportation while decisions are pending. The stay of removal is automatic if papers have been filed in the proper time frame according to immigration laws. It is discretionary when an appeal has been made to reopen or reconsider a particular case.
Reentry after Removal
Under normal circumstances, an individual who has been deported from the U.S. cannot reenter the country for 3 to 10 years. The most serious offenders may be barred for a lifetime. In cases in which sufficient time has passed, or a waiver has been granted, individuals may apply for a new visa to enter the country. If, however, a person reenters the U.S. illegally after being removed, that person is subject to a fine, imprisonment, or both.