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.
What Are the Options If the Appeal for Deportation Order Is Denied?
If an appeal against a deportation order is denied, there are still a few options available, though they are limited. One possibility is to file a motion to reopen or reconsider with the immigration court.
This is typically based on new evidence or changes in circumstances that affect the case. Another option could be to file an appeal with the Board of Immigration Appeals or, in some cases, with a federal court, although this is usually a more complex legal process.
For some foreign nationals, applying for voluntary departure may be a viable alternative. Voluntary departure allows an individual to leave the U.S. at their own expense within a specific time frame, which can sometimes be a more favorable outcome than a formal removal order.
It’s essential for anyone facing deportation, especially if previous appeals have been denied, to consult with an experienced immigration attorney. They can provide crucial legal representation and guidance on the intricacies of immigration law and the legal proceedings involved.
Immigration Court Hearings
When an individual faces removal, the immigration court process begins with a master calendar hearing. This initial hearing is where the judge outlines the charges, explains rights, and sets dates for future proceedings. Attendance is critical—missing a master calendar hearing may result in an in absentia deportation order, which can be difficult to overturn.
At subsequent individual hearings, the judge hears testimony, reviews evidence, and makes a decision. During these proceedings, individuals may apply for relief such as asylum, cancellation of removal, or adjustment of status. In expedited removal cases, however, some immigrants are denied the chance for a full hearing, underscoring the importance of legal representation.
An immigration attorney can help navigate court procedures, prepare for testimony, and file motions like a motion to reopen if new evidence arises. This guidance can be the difference between removal and relief.
Appeals Process: Board of Immigration Appeals and Beyond
If the immigration court issues an unfavorable ruling, the next step is the Board of Immigration Appeals (BIA). To begin this process, individuals must file a notice of appeal within 30 days of the decision. The appeal process at the BIA is paper-based, meaning the board reviews written briefs and prior records rather than holding a new trial.
The BIA evaluates legal errors, procedural issues, and whether the judge properly applied immigration law. If the appeal is successful, the case may be remanded back to the immigration court for further proceedings. If denied, individuals may pursue appeals in the federal circuit courts, and in rare cases, petition the U.S. Supreme Court.
For those facing expedited removal or complex legal questions, the appeal process can be highly technical. Filing a motion to reopen or reconsider may provide another opportunity if new evidence or legal arguments arise. Legal assistance is essential to ensure deadlines are met and arguments are presented persuasively.
Resources such as a Guide to deportation appeals can provide more detail on these complex procedures. Individuals should also Check your deportation status to monitor case progress and consult counsel about strategies to Avoid deportation.
Can Family Members or Dependents Affect the Outcome of a Deportation Appeal?
Family members or dependents can significantly impact the outcome of a deportation appeal. The presence of close family members, particularly U.S. citizens or lawful permanent residents, can be a compelling factor in immigration matters.
Courts sometimes consider the impact of deportation on a family member, especially in cases involving extreme or unusual hardship to the U.S. citizen or lawful permanent resident.
An experienced immigration attorney can argue that the removal of a foreign national would cause significant hardship to their U.S. relatives, which may influence the judge’s ruling.
However, these considerations often depend on the specific details of the case, including whether the individual facing deportation has committed a criminal offense or poses a threat to public safety.
In cases involving fraudulent immigration documents or serious criminal offenses, the impact on family members may carry less weight in the final decision. For undocumented immigrants with strong family ties in the U.S., presenting a robust case highlighting these relationships is crucial in the appeal process for deportation orders.
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.
Grounds and Defenses to Stop Deportation
Several legal defenses may help when considering how to stop deportation order proceedings. Common defenses include asylum for those fearing persecution, cancellation of removal for long-term residents, and waivers for specific criminal convictions or immigration violations. Some individuals may also be eligible for adjustment of status through family relationships or humanitarian relief. Each option requires proving eligibility and presenting evidence to the court, which can make legal assistance crucial. Exploring all available defenses early may increase the chances of avoiding removal.
Legal Processes After Receiving a Removal Order
The process does not always end immediately when a removal order is issued. Individuals may seek relief through motions to reopen, reconsider, or appeal to federal courts. Immigration enforcement may also allow time for voluntary departure or review of new applications. Knowing how to stop deportation order proceedings at this stage often depends on filing within strict deadlines and following proper procedures. Missing these opportunities may result in immediate enforcement of the removal order.
Voluntary Departure
Voluntary departure allows a person to leave the United States at their own expense within a set period, rather than being forcibly removed. Choosing this option can sometimes protect future eligibility for certain visas and reduce the negative consequences of deportation. However, failing to depart by the deadline can result in penalties, including fines and bars on returning. This path may not be right for everyone, but it can offer a less damaging alternative under certain circumstances.
Responsibilities of Sponsors and Relatives
In many cases, a sponsor or U.S. relative plays a role in deportation defense. Family members who signed affidavits of support may remain financially responsible for the immigrant, even if removal proceedings begin. Courts may also consider the hardship to U.S. citizen spouses, parents, or children when deciding on relief applications. Strong family and community ties can be persuasive in deportation appeals, particularly when hardship significantly impacts dependents.
Work Authorization During Proceedings
Individuals in removal proceedings may be eligible for work authorization under certain conditions. If an asylum application, cancellation of removal, or adjustment of status is pending, the immigrant may request employment authorization. Legal permission to work can provide stability while the case proceeds through the courts. Because eligibility rules can change and vary depending on the type of application filed, confirming options with an attorney is essential to avoid unauthorized employment.
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.