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|What Is Deportation
Released 25 September 2006  By National Immigrant Solidarity Network
WHAT IS DEPORTATION
When an Immigration Judge has found that an alien is illegally present in
the United States, it does not necessarily follow that he will be
deported. The Immigration and Nationality Act provides many types of
relief from removal. Chief among these are (1) waivers of excludability
and deportability; (2) cancellation of removal for permanent residents;
(3) cancellation of removal for non-permanent residents; (4) suspension of
deportation; (5) adjustment of status to permanent residence; (5) asylum
and withholding of deportation; (6) legalization and registry and, if all
else fails, (7) voluntary departure.
The immigration law enumerates various grounds by which an alien in the
United States may be subject to removal from the U.S. A common ground of
removability provides that an alien may be subject to removal if he was
excludable when he entered the United States. There are many grounds of
removability found in the law.
Eligibility for waivers of removability depend upon the alien's ability to
establish hardship to himself or to his close family members if he were to
be removed from the U.S. For example, a person who has committed fraud or
a material misrepresentation may apply for a waiver under 212(i) if the
failure to admit him to the U.S. would result in "extreme hardship" to his
lawful permanent resident (LPR) or U.S. citizen (USC) spouse or parents.
Similarly, a person who is excludable on certain criminal grounds may be
eligible for a waiver under 212(h) if the failure to admit him to the
U.S. would result in "extreme hardship" to his LPR or USC spouse,
parent(s), son(s) or daughter(s).
CANCELLATION OF REMOVAL FOR PERMANENT RESIDENTS
INA 240A(a) allows the Attorney General (usually an Immigration Judge or
the Board of Immigration Appeals) to cancel the removal of a lawful
permanent resident from the U.S. if:
1. He has been an LPR for a minimum of five years;
2. He has resided continuously in the U.S. for a minimum of seven years
after being admitted to the U.S. in any status (prior to the institution
of removal proceedings);
3. He has not been convicted of an aggravated felony;
4. He is not inadmissible from the U.S. on security grounds.
The following classes of persons are ineligible for cancellation of
removal:(1)Certain crewmen; (2) Exchange visitors (in "J" status) who
received medical training in the U.S.; (3) Persons who have persecuted
others; (4) Persons who have previously been granted cancellation of
removal, suspension of deportation (See below.) or relief under 212(c);
and (5) Persons who committed certain criminal offenses prior to the
accrual of the required seven years.
Positive factors include: (1) Family ties within the U.S.; (2) Long time
residency in the U.S.; (3) Hardship to person and immediate family; (4)
Service in U.S. Armed Forces; (5) Employment history; (6) Ownership of
property and business ties; (7) Service to the community; (8)
Rehabilitation (if criminal record exists); and (9) Good moral character.
Negative factors include: (1) Nature and circumstances of exclusion
grounds; (2) Other immigration law violations; (3) Criminal record; and
(4) Other evidence of bad character.
CANCELLATION OF REMOVAL FOR NON-PERMANENT RESIDENTS
INA 240A(b) allows the Attorney General (usually an Immigration Judge or
the Board of Immigration Appeals) to cancel the removal of a non-permanent
resident from the U.S. who:
1. Has been physically present in the U.S. for a continuous period of ten
years prior to the institution of removal proceedings. (This requirement
is not applicable to persons who have served a minimum of 24 months in the
U.S. Armed Forces, was present in the U.S. during his enlistment or
induction, and is either serving honorably or has received an honorable
discharge.) "Continuous" means that the person can not be out of the U.S.
for more than 90 days at a time, or 180 days in the aggregate, during the
2. Has been a person of good moral character for ten years;
3. Is not inadmissible under 212(a)(2) or (3) (criminal and security
grounds) or deportable under 237(a)(1)(G) (marriage fraud), (2) (criminal
grounds), (3) (failure to register and falsification of documents) or (4)
(security and related grouds).
4. Whose removal would result in exceptional and extremely unusual
hardship to his/her spouse, parent, or child, who is a citizen of the
United States or an alien lawfully admitted for permanent residence.
Special relaxed rules for cancellation of removal apply to battered
spouses and children.
Only 4,000 persons may be granted cancellation of removal and suspension
of deportation (See below.) in a single fiscal year.
SUSPENSION OF DEPORTATION
Any expulsion proceedings commenced on or after April 1, 1997 are removal
proceedings rather than deportation or exclusion proceedings.
However, persons who were placed in deportation proceedings prior to April
1, 1997 as well as NACARA applicants may still be eligible for suspension
A deportable alien may apply for permanent residence through suspension of
deportation if he is able to fulfill the following 3 conditions:
1. He must have been continuously physically present in the U.S. for at
least seven years. Absences which are "brief, casual and innocent" do not
interrupt the continuity of the alien's physical presence.
2. He must be a person of good moral character.
3. It must be an extreme hardship upon the alien, or his spouse, children
or parents who are citizens or residents of the United States if he were
forced to leave the country.
ADJUSTMENT OF STATUS
A deportable alien who is the parent, spouse, widow or child of a U.S.
citizen may be eligible to apply to the Judge to adjust his status to that
of a lawful permanent resident. Also qualified to apply for adjustment of
status are many aliens whose priority dates for permanent residence are
Aliens who obtained conditional permanent residence based upon their
marriage, or the marriage of their alien parent, to a U.S. citizen may
have their legal status terminated by the INS if they fail to meet certain
requirements. However, once INS places them under deportation proceedings,
they may renew their applications for permanent residence before an
ASYLUM AND WITHHOLDING OF DEPORTATION
Those who have a well-founded fear of persecution if they return to their
home country may apply for asylum if their fear is based on any of the
1. Political opinion
2. Religious belief
5. Membership in a particular social group
If a person is granted asylum, after one year they may apply for permanent
Withholding of deportation is similar to asylum. However, it differs in 2
important respects: (1) It does not permit the alien to apply for
permanent residence, and (2) it only prohibits the INS from deporting the
alien to one particular country.
LEGALIZATION AND REGISTRY
Once an illegal alien has been found qualified for legalization or
"amnesty" by the INS, the deportation hearing will typically be closed
since the alien will have attained the legal right to remain in the United
Registry is another means of attaining lawful permanent residence in the
United States. It is available to aliens who have resided continuously in
the U.S. since prior to January 1, 1972, who are persons of good moral
character, who are not deportable on certain aggravated grounds, and who
are not ineligible to citizenship.
Finally, if there is no other relief from deportation, most aliens are
eligible for, and should apply for, voluntary departure from the United
States. This avoids both the stigma and the legal impediments to return to
the United States imposed by deportation.
Voluntary departure is available to aliens who are not deportable on
aggravated grounds, who have the means to pay for their departure from the
U.S., who agree to depart within a period of time granted by the
Immigration Judge, and who can establish good moral character during the
previous five-year period.
All forms of relief from deportation, except withholding of deportation,
may be granted at the discretion of an Immigration Judge. Final orders of
an Immigration Judge may be appealed to the Board of Immigration Appeals,
and in certain cases to the appropriate U.S. Court of Appeals.
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