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What should I know about deportation?

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Rights during the deportation process in the U.S. Resources

Rights during the deportation process in the U.S.

What should I know? +

Contents


What is deportation?

Deportation is when the government formally removes a non-U.S. citizen from the country for violating immigration law. All immigrants, even those with green cards, can be deported if they commit certain crimes or do not follow immigration law while in the United States. 

 

Immigration law is very complicated. These laws can have serious consequences for immigrants in the United States. This article only gives a brief overview of the deportation process. If you, or someone you know, is facing deportation, contact an immigration attorney immediately. 

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What are the reasons I might be deported?

You cannot be deported unless you commit a “deportable offense.” These offenses vary based on your immigration status. Some common reasons for removal include:

 

  • Being in the U.S. without permission. This applies to undocumented immigrants. The most common reason for deportation is entering the U.S. illegally or staying after a visa expires. Undocumented immigrants face deportation just for being in the country. 

    • If you also commit a criminal act, you may be barred from returning to the United States after you are deported. 

 

  • Committing a crime. This applies to green card holders, visa holders, and other nonimmigrants. If you are convicted of certain crimes, you could face deportation. Not all convictions will result in deportation. Whether a crime is considered a “deportable offense” is often left to immigration officials. If you are charged with a crime as a noncitizen, you should consult an immigration lawyer immediately. In general, you could be deported for:

    • Aggravated felonies (murder, rape, etc.),

    • Drug offenses,

    • Firearms trafficking,

    • Money laundering, 

    • Fraud,

    • Espionage or terrorism,

    • Smuggling an undocumented immigrant,

    • Marriage fraud,

    • Domestic violence, and 

    • Crimes of “moral turpitude.” There is not a clear definition of what crimes involve “moral turpitude.” Generally they are acts that are “inherently base, vile, or depraved.” Crimes of moral turpitude could include misdemeanors. It could be left to a immigration judge to decide if a crime involves moral turpitude. 

 

  • Breaking the rules of your visa. This applies to visa holders and other nonimmigrants. People who have temporary permission to be in the United States are required to follow certain rules. For example, if you are in the U.S. on a tourist visa, you cannot work. If you do not follow these rules, you could be deported.

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What is the expedited deportation process?

Expedited removal means you are deported without going to court. Expedited removal is only allowed if you:

  • Are at a port of entry and are not eligible to enter the United States. This generally means you were caught entering the country.

  • Have a previous removal order that is still in effect. If you were deported and are caught in the U.S. before you were legally allowed to return, your previous removal order will be “reinstated.” 

  • Are an undocumented immigrant who entered the country illegally and you are detained within two years of arriving in the country.

    • This rule was expanded in July 2019 and went into effect October 2020. Before the rule was under 14 days in the country and within 100 miles of a U.S. border.

    • Under the expanded rule, it is up to you to prove you have been in the U.S. for more than 2 years to avoid expedited removal. If you cannot show proof, the immigration official can assume you have been in the country for less time.

 

You are not subject to expedited removal if you:

  • Have legal status.

  • Have a credible fear of persecution in your home country.

  • Are undocumented, but have been in the U.S. for more than two years.

  • Legally entered the U.S., even if you are now undocumented.

  • Are an unaccompanied minor.

 

In general, during the expedited process:

  • You will only have an interview with an immigration officer. 

  • You will not have the right to appeal the officer’s decision.

  • You will be deported within a few days.

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What if I have a credible fear of returning to my home country?

If you have a credible fear of returning to your home country, you cannot go through expedited deportation. You have the right to a hearing with an immigration judge. This hearing will decide whether you might have a case for asylum. 

 

To have a “credible fear,” you must show there is a real possibility that if you go back to your home country, you will be persecuted or tortured because of your:

  • Race,

  • Religion,

  • Nationality,

  • Membership in a particular social group, or

  • Political opinion.

 

What is the credible fear process?

During your initial contact with an immigration official, you should be asked whether you have a credible fear. If you say “yes” then a process should be followed:

  • You tell the immigration official you have a credible fear of returning to your country. Immigration officials are supposed to ask you if you have a credible fear before they decide if you are eligible for deportation. But this does not always happen. 

    • As soon as you are stopped, it is important to ask to talk to an immigration attorney. If you have a credible fear, make sure your attorney knows about it and brings it up with the immigration official during your interview.

  • You have an interview with an asylum officer. If you state that you have a credible fear, you should then get an interview with an asylum officer from USCIS. This interview will decide if you should get a full hearing before an immigration judge. 

    • You should be given at least 48 hours to prepare for the interview.

    • The interview will happen over the phone, video, or in person.

    • An interpreter will be present to translate into your native language.

    • These interviews can be tricky. It is important to have an immigration attorney help you prepare and be present during the interview.

  • The asylum officer makes a decision.

    • If the officer decides you do not have a credible fear, you may be deported immediately.

      • You or your lawyer may be able to challenge this decision. You can request a review by an immigration judge, or a re-interview with the asylum office.

    • If the officer decides you do have a credible fear, you will start the formal deportation process. This includes a hearing before an immigration judge.

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What is the traditional deportation process?

If you are facing deportation you may be put in a Department of Homeland Security (DHS) or ICE detention center while you wait for your immigration hearing. 

 

If you are detained:

  • You have the right to call your consulate and a lawyer. An immigration lawyer can help you enforce your rights and understand your options.

  • Ask for a bond hearing. At the bond hearing, the judge will decide: 

    • whether you can be released on bond and 

    • how much the bond will be. 

 

The deportation process can take months. In general, the deportation process includes:

  • Notice to appear. You will be given a notice to appear at a removal hearing. This will be served by an immigration officer or will come in the mail. It will tell you:

    • The reasons ICE thinks you can be deported, and

    • When you have to appear in court.

  • Master calendar hearing. The first hearing is called the master calendar hearings. If you have an attorney, they should be with you at this hearing. 

    • At this hearing the charges will be read. You will admit or deny each charge.

    • The judge will decide if you have any defenses to deportation. Talk to your attorney about what defenses might be available to you. The defenses won’t be considered now, but should be brought up at this hearing. A defense might be that you qualify for:

      • Asylum, 

      • A family-based green card petition.

      • A U Visa for certain victims of crime,

      • DACA,

      • VAWA relief for victims of domestic violence,

      • Temporary protected status. This applies to citizens from certain countries designated by the U.S. government,

      • Non-legal permanent resident cancellation of removal. 

  • Merits hearing. This is the hearing where each side will present arguments about:

    • The reasons the government claims you should be deported, and

    • Any defenses you have to deportation.

  • Decision by the judge. The judge will make a decision. They will either sign a removal order or allow you to stay in the country.

  • Appeals. If the judge signs a removal order, you have the right to appeal that decision. 

  • Deportation. If all appeals are denied you can be deported at any time. ICE may decide to:

    • Detain you for up to 180 days until they can arrange for your deportation.

    • Rease you while you they arrange for deportation, or

    • Delay deportation for humanitarian reasons. In very limited circumstances, ICE may allow you to stay in the U.S. for a time, despite the deportation order.

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What is voluntary departure?

Instead of a deportation order, you may be allowed to leave the country on your own. This may allow you to come back to the U.S. legally sooner than if you are deported. Voluntary departure must be granted by an immigration judge. 

 

Even if you qualify, voluntary departure may not always be the best choice for you. Talk to an immigration lawyer about your options. Choosing voluntary departure could affect your chances of reentry or gaining lawful permanent residence. 

 

To be eligible for voluntary departure, you must:

  • Request voluntary departure at the beginning of your deportation case,

  • Show that you can pay your way back to your home country,

  • Show that you’ve had good moral character for at least the past 5 years,

  • Not be removable for an aggravated felony or terrorism,

  • Be able to pay a departure bond, and

  • Have not received a voluntary departure in the past. 

 

If you are granted voluntary departure, you will be given a date when you must leave. If you do not leave by that date, your voluntary departure automatically becomes a deportation order. 

 

When can I return to the U.S. after I am deported or voluntarily depart?

The bar on returning to the U.S. will depend on the circumstances of your removal. In limited circumstances, it is possible to get a waiver for these bars. Talk to an immigration lawyer to see if you qualify for a waiver. 

  • Voluntary Departure. Depending on the amount of time you’ve been in the U.S. illegally, you may be barred for no time or 10 years. 

    • If you have been in the U.S. for less than a year, then you will have no bar to reentry.

    • If you have been in the U.S. for more than a year, you will be barred from reentry for 10 years. 

  • Expedited removal or failure to show up to a removal hearing. You will be barred for 5 years:

    • If you go through expedited removal or 

    • If you fail to show up for an immigration hearing.

  • Removal order by immigration court. If a judge orders your removal after a hearing, you will be barred for 10 years. 

  • Removed after a conviction for an aggravated felony. You will be permanently barred from reentry.

  • More than one deportation. If you were deported once before and re-entered the U.S. again without legal permission, you may be banned from 20 years to life. You may also face criminal charges.

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What are my rights if I am arrested by police or detained by ICE?

You have rights during an arrest. These include:

  • You have the right to ask for identification.

  • You have the right to be told what crime you are being charged with.

  • You have the right to not speak. You do not have to answer any questions or speak to officers. If you wish not to speak, inform the officer that you wish to remain silent and want to talk to a lawyer.

    • You do not have to answer questions about where you were born or your immigration status. 

    • If you are detained by ICE, you have the right to speak to a lawyer. However, ICE does not have to provide you with a lawyer.

  • If you are arrested by police, you have the right to make a phone call. If you are speaking with an attorney, the police cannot listen to your phone call.

  • If you are arrested by ICE, you have the right to call your consulate.

  • You have the right to be visited by your lawyer in detention. 

  • You have the right to have your attorney with you at any hearing:

    • In criminal court or

    • Before an immigration judge.

  • You have the right to a bail hearing within 48 hours (or 72 if you were arrested with a warrant). At this hearing, the judge will either set bail or release you without bail on a “personal recognizance” bond. 

    • If you are arrested for a misdemeanor, the bail amount might be set automatically, so you will not need to have a bail hearing. You should be told of the bond amount when you are booked. 

 

If you are arrested, do not resist. Resisting arrest can lead to more charges. It may also be unsafe.

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What are my rights and responsibilities during the deportation process?

You have rights during deportation proceedings:

  • You have the right to be represented by a lawyer. The government does not have to provide one for you.

  • You have the right to understand the proceedings. If you need an interpreter, the court must provide one for you.

  • You have the right to review all the evidence against you.

  • You have a right to present your own evidence, including witnesses.

  • You have the right to appeal a removal order.

 

You are responsible for:

  • Attending court hearings. If you miss a court hearing without an order from the court, the court will issue an order of removal.

    • If you miss a hearing because of an emergency, you must file a motion to reopen your case within 90 days of your hearing.

  • Report any address change. You must give the court and ICE your updated address if you move.

  • Follow the conditions of your release. You might be detained and then let out on bond. If so, there will be steps you have to take, like meeting with a deportation officer. If you don’t follow these conditions, you will be put back in detention. It may also cause you to lose your deportation case.

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What can I do? +

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What should I do if I am arrested or detained by ICE?

Exercise your rights. 

  • You do not have to speak. Do not give any information about your immigration status.

    • If you do answer questions, do not lie. 

  • Ask for a warrant. If police or an immigration officer comes to your home to arrest someone, they must have a warrant. Ask to see the signed court order before letting them in.

    • You do not have to give any information or open your door.

  • Ask to talk to your lawyer before you answer any questions. An immigration lawyer can help you protect yourself and your rights. You may not be entitled to have an attorney appointed for you. Memorize the number of an immigration attorney. You can ask for a list of free or low-cost lawyers.

  • Do not sign any papers waving your rights, especially if you do not understand what the documents say.

  • Keep track of your immigration number and give it to your lawyer or family.

    • Make sure your family knows how to find you if you are detained.

      • If you are in ICE detention, they can go online to try to find out where you are. Once you know where you are, you can get contact information for the detention center on the ICE website.

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What can I do if I’m worried about expedited deportation?

If you worry that you might face expedited deportation, there are a few things you can do in advance:

  • Carry documentation with you.

    • If you are undocumented but have been in the U.S. for more than two years, collect and carry copies of documents that will prove your presence. Leave a copy of this information with your family and attorney. Proof might include:

      • Past leases with dates, 

      • Utility bills, 

      • Tax returns, 

      • School records for children, or

      • Date stamped photos taken in the U.S. 

    • If you are a green card or visa holder. You are required to carry your immigration documents with you at all times. Make photocopies of these documents and keep them in a safe place. 

    • If you are a U.S. citizen. Although you are not required by law to carry proof of citizenship, you should. Keep a photocopy of a passport, naturalization certificate, or certificate of citizenship with you. 

  • Apply for asylum. You can apply for asylum if: 

    • You have a credible fear of returning to your home country and 

    • Have been in the U.S. for less than one year.

      • There are a few exceptions to the one year limit. Talk to a lawyer to see if any apply to you.

  • Make a safety plan. Talk to your family, friends and co-workers. Decide what to do if you or someone you know is detained by immigration. 

    • Find the number of a trusted immigration attorney,

    • Make copies of important documents and let people know where to find them,

    • Make plans for childcare,

    • Make sure your family knows how to find you if you are detained.

If you are in ICE detention, they can go online to try to find out where you are. Once you know where you are, you can get contact information for the detention center on the ICE website.

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Last Review and Update: Dec 11, 2020