There is nothing more threatening to an immigrant than the threat of deportation. Many immigrants seek sanctuary in the U.S. from violence or political injustice in their native countries. Others come to escape poverty and have the opportunity for a better life for themselves and their families. Few immigrants understand immigration laws or how the deportation process works, making it hard for them to defend themselves against deportation.
What is the Deportation Order Process?
1. Person is placed in deportation proceedings.
The deportation process formally begins when the person is delivered a “Notice to Appear,” a charging document.
2. Person appears before an Immigration Judge to respond to deportation charges.
In immigration court, you can admit or deny the allegations and charge of deportation. If the Immigration judge agrees not to deport you, he or she will terminate your case. If the judge disagrees, you remain in the process of deportation.
3. Person applies for relief from deportation.
4. The immigration Judge hears all evidence and decides whether to grant the relief or order deportation.
You and the government present evidence in support of your application for relief from deportation. Whatever the Immigration Judge orders, it’s essential to tell the Judge you want to reserve the right to appeal. Immigrants won’t be removed from the U.S. while waiting on decisions on their deportation appeals.
5. Appeal to the Board of Immigration Appeals.
If the Immigration Judge denies your application for relief from deportation, you may appeal the Immigration Judge’s decision within 30 days of the decision. Appeals on immigration court decisions are made to the Board of Immigration Appeals (BIA). Bear in mind that the burden of proof is on the appealing party; in other words, the immigrant and their immigration lawyer have to convince the BIA that the Immigration Judge made a wrong decision and that the deportation order should be vacated or revised. However, if the Board doesn’t receive immigration appeals by the set deadline, removal decisions become final.
6. Appeal to the Petition for Review.
You have the right to petition the federal court of appeals to review the Judge’s decision and the Board’s decision if the Board of Immigration Appeals denies the appeal. An individual has to file a petition for a review in the federal circuit court of appeals, which has jurisdiction over the immigration court where the decision was made. However, bear in mind that a federal court has a right to decline to hear your immigration appeal.
Determining if You Can Appeal
There are a few defenses against deportation from the U.S:
1. The Basis for Appeal #1: Naturalization
If you are not a citizen but your parents or grandparents are U.S. citizens, you may be eligible for naturalization. You can not have c an aggravated felony on your record, served more than 180 days in jail for any crime, and can show you have had a good moral character for the past five years.
2. The Basis for Appeal #2: Cancellation of Removal or 212c.
If you’ve held a green card holder for a minimum of five years, resided in the U.S. for seven years, and haven’t been convicted of an aggravated felony, you may be able to appeal based on cancellation of removal.
Suppose you were convicted of an aggravated felony after April 24, 1996, but before April 1, 1997, but did not serve more than five years and meet the residency criteria. In that case, you may be able to file for appeal under the old 212c waiver.
3. The Basis for Appeal #3: Asylum
Suppose you suffered harm or fear harm in your native country because of race, nationality, religion, political opinion, or membership in a specific group. In that case, you may be able to appeal based on asylum.
4. The Basis for Appeal #4: Adjustment of Status
If you married a U.S. citizen, have a U.S. citizen child 21 years of age or older, or have a parent that is a U.S. citizen, your relative can file a family petition for you with Immigration showing you are admissible to the U.S.
5. The Basis for Appeal #5: 212h Waiver
To use a 212h waiver, you need to show that removing you from the U.S. would cause extreme hardship for your spouse, son, daughter, or parent who are U.S. citizens. Additionally, you cannot have a violent crime or aggravated felony on your record.
6. Basis for Appeal #6: Refugee Waiver
Refugees who have never applied for an adjustment of status to get a green card may apply for a refugee waiver if they have a criminal conviction. They must include a declaration about why they fled their country, the harm they face if deported, human rights reports that support their statement, and declarations from family and others who know their situation. The waiver does not apply if the government has a reason to believe they are or have been a drug trafficker or security or terrorist threat.
How to File an Appeal
You have only 30 calendar days after the IJ’s oral decision (in court), or after the date the IJ’s written decision was mailed to you, to send your Notice of Appeal to the Board of Immigration Appeals (BIA).
The first step is filing a Notice of Appeal (Form EOIR-26), available on the DOJ website. There is a filing fee of $110, which needs to be made by check and made out to the United States Department of Justice.
After the appeal is accepted, the person appealing will receive an appeal receipt. Then, a “briefing” schedule will be issued.
The person appealing has 21 days to deliver to the Board of Immigration Appeals a written argument in favor of their position.
Get Help from an Immigration Lawyer
If you have received a deportation notice, you must speak with an immigration attorney as soon as possible.
A skilled immigration attorney will advise you on the best defense for your situation. They will guide you through the application process and help gather the necessary documentation and evidence helpful to your deportation case.
Frequently Asked Questions About the Deportation Appeal Process
Can You Appeal a Deportation?
Yes. To appeal your case, you must have a rational basis upon which to argue that the Immigration Judge made a legal error upon issuing an order of deportation.
If the Immigration Judge overlooked or ignored crucial evidence, failed to consider testimony from one of your witnesses, or if an immigration court rule or procedure was unfairly used against you, you may have legal grounds for an appeal.
What are the Chances of Winning a Deportation Appeal?
It all depends on the underlying facts and legal issues of the case.
What is the Most Common Reason for Deportation?
The most likely reasons for deportation include criminal convictions and unauthorized presence in the United States.
What Happens After a Deportation Order?
You have 30 days from the immigration judge’s deportation order in which you can file an appeal with the BIA.
If all appeals fail, the judge will issue an order of removal. The court will send you a “bag and baggage” letter telling you when and where to report.
Can You Come Back to the US After Deportation?
To return to the U.S. after deportation, a person must be admissible or be able to obtain a waiver of inadmissibility and obtain an appropriate visa.
What is the Difference Between Removal & Deportation?
There’s no difference between deportation and removal.
How Do You Get Out of Deportation?
The following are some common defenses that could help you avoid deportation.
- Political asylum
- Temporary Protected Status (TPS). If you are in the U.S. because your home country had a natural disaster or civil war, you may be able to remain under TPS legally.
- Adjustment of status. Foreign nationals already in removal proceedings and currently living in the U.S. may still be allowed to apply for a green card under this provision.
- Immigration waivers. Many different immigration waivers could be used for certain immigration violations and crimes to avoid deportation.
Winning a deportation case law is dependent upon having an attorney who understands how to defend your rights. Having a skilled immigration attorney at your side can make all the difference to your case’s outcome.
