A non-citizen of the United States, including lawful permanent residents (green card holders), can be deported (under current law what used to be referred-to as “deportation” is now called “removal”) for violating the terms of his visa, for committing certain crimes, or for certain types of conduct contrary to the immigration laws, like alien smuggling or using false documents. A person trying to enter the United States can be arrested, denied admission and excluded from the United States as well. However, just because the government claims that a foreigner is excludable or deportable does not mean that he or she is. The foreigner can fight his case in Immigration Court and it can sometimes be terminated because the government’s claim of deportability or excludability cannot be proved. Being a citizen protects a person from being deported or excluded. Sometimes a person is a citizen without being aware of it. If an Immigration Judge is presented evidence that shows that the person is a citizen, removal proceedings will be terminated.
In presenting its case to deport someone, the government often has a burden of producing evidence of deportability. If the evidence the government submits to prove its case is illegally obtained and the illegality amounts to an egregious constitutional violation or, in the case of testimony, is untrue, evidence may be suppressed. If a foreign national arrested by the Immigration and Customs Enforcement (ICE) or the Directorate of Border and Transportation Security (BTS) and makes statements as a result of coercion through the use of or threats of use of force, prolonged detention, inducements to lie, threats of prolonged detention, or deprivation of food, sleep, or medical care, that put in serious doubt the truthfulness of the statements, the statements may be suppressed as well. If the government’s case relies on the suppressed evidence, suppression could lead to termination.
Certain foreigners in removal proceedings may be eligible for a pardon that will prevent removal. One such form of relief is Cancellation of Removal for Certain Permanent Residents. This relief is for lawful permanent residents (Green Card Holders) who have had their permanent residence for five (5) years and have acquired seven (7) years of residence in the United States after being admitted in any status. The seven years of residence sometimes stops accruing when a “removable offense” (serious crime) is committed and always stops when a charging document (Notice to Appear – “NTA”) from the government charging the foreign national with removability is given to him/her. An Immigration Judge’s decision to grant a pardon is made based on a weighing the positive and negative equities in a case.
In the case of foreigners who have been in the United States for more than ten (10) years and have committed no crimes (with some exceptions), relief from removal may be available if the foreigner can show exceptional and extremely unusual hardship to his spouse, parent, or child who is a citizen of the United States or a lawful permanent resident (“green card” holder).
In certain situations, a foreigner who has been placed in removal proceedings can receive a visa and permission to reside in the United States from an Immigration Judge. This option is sometimes available to foreigners who have committed some specific types of crimes in the United States. Sometimes a criminal ground that would bar a foreigner from obtaining permanent resident status in the United States can be waived based on the existence of hardship to the foreigner’s spouse, parents, son, or daughter who are permanent residents or citizens. Certain acts of fraud that make a foreigner ineligible for a visa can also be waived, if denying the foreigner the ability to stay in the United States would be a hardship to the foreigner’s spouse or parent.
In the case of a foreigner who must leave the United States, it is sometimes possible to receive a grant of voluntary departure rather than a removal order. Voluntary departure allows for an alien to obtain a visa outside the United States to return to the United States without any of the penalties attached to having been removed, which range from a five year bar to a permanent bar to ever returning to the United States depending on the basis for and circumstances of the removal.
For many foreigners there is no defense to being deported/removed under the current interpretations of the law. This does not mean that nothing can be done. There are many challenges to the current harsh removal laws. Some persons in removal proceedings have opted to challenge the legitimacy of the statutes and interpretations of the statutes that threaten them with removal from the United States. Those that stand and fight can have a positive impact on the law and may be able to preserve issues in their own cases so that they will ultimately be victorious and defeat the government’s attempt to remove them. Some of the harshest provisions of changes in the law in 1996 have been overturned because some people fought rather than simply left.