REMOVAL
Frequently Asked Questions
Browse for answers to FAQ about Removal
A. Overview of Removal Proceedings
1. Who may be deported?
There are six (6) classes of deportable aliens under INA § 237(a).
- Inadmissible at time of entry or violated status
- Convicted of crimes
- Failed to register or falsified documents
- Endangered national security
- Became a public charge
- Voted unlawfully
2. What does inadmissible mean?
Under INA § 237(a)(1), there are several categories of aliens who are inadmissible and may not legally enter the country.
Reasons for inadmissibility include:
- Health
- Crimes
- Security threat
- Public charge
- Labor certification
- Illegal entry
- Documentation
- Citizenship ineligibility
- Previously removal
- Miscellaneous – polygamy, child abduction, etc.
3. How do I know if I violated my status?
4. What crimes can I be deported for?
Crimes of moral turpitude and aggravated felonies. Also, persons with multiple convictions are inadmissible, and thus may deported as well. An alien is inadmissible if convicted of 2 or more offenses and sentences aggregate to 5 or more years.
5. What is a conviction?
A conviction for immigration purposes is not a formal finding of guilt. See Section 101(a)(48) of the INA.
6. What is crime of moral turpitude?
Crime of Moral Turpitude is not defined in the statutes. This is why you should contact an attorney. Attorneys will resort to researching the case law. What we do know is that some sort of “evil intent” must be an essential element of the crime.
An alien is inadmissible if convicted, admits to having committed, or admits to attempting.
7. What is aggravated felony?
(i) May be misdemeanor
(ii) May be “crime of violence” under 18 U.S.C. § 16
8. How do I know if I can be deported?
a. Look at deportable offenses in § 237
(i) Crimes
- CMT conviction w/in 5 years
- What is CMT?
(ii) Aggravated felonies
- No time limit
- List of offenses 101(a)(43)
9. Do I have any constitutional rights while in removal proceedings?
Yes, immigrants do enjoy some constitutional protection, such as right to an attorney.
10. What constitutional rights do immigrants in removal proceedings not enjoy?
For example, the prohibition against ex post facto laws does not apply to removal proceedings. That means the government can pass a law that retroactively affects deportation of an alien.
B. RELIEF FROM REMOVAL
1. How does a removable alien avoid removal?
- Prosecutorial discretion
- Deferred action
- Stay of removal
- Immigration judge
2. Who is eligible for Cancellation of removal? - § 240A
A Permanent Resident is eligible for Cancellation of Removal if:
- Lawful permanent residence for 5 years
- Continuous residence of 7 years
- No aggravated felonies
If the person is not an LPR, the burden is much higher. They must establish:
- Continuous presence of 10 years
- Good moral character
- No crimes under § 212(a)(2)
- Exceptional and extremely unusual hardship to alien’s spouse, parent, or child who is a U.S. Citizen or LPR.
Please note that this last element is very difficult to establish.
3. How do you calculate time? See 240A(d)
- For continuous residence/presence, stop running time once alien served a notice to appear.
- For length of LPR status, time continues to run even after alien has been served.
4. How do you end up in removal?
- Arrest by CBP during illegal entry. Exception: expedited removal does not lead to removal proceedings.
- Apply for immigration benefit & denied. (The office that denied you may send your case for review and initiate removal proceedings)
- Be undocumented and detained by ICE
- Be convicted of a crime refer your case to ICE, which will remove you
- Turn yourself in to authorities at the border, or at an airport, and ask for asylum.
- Belong to a particular group some groups are targeted by DHS.
5. Do aliens have Equal Protection rights in removal proceedings?
Non-citizens receive similar constitutional treatment in non-immigration matters. However, the Supreme Court has held that non-citizens have limited rights when it comes to entering/remaining in the country.
C. ASYLUM
1. What is Asylum?
a. If a person is a refugee, then they can apply for asylum.
b. If granted asylum, then
b. Wholly within the discretion of the A.G.
2. What is a Refugee?
A refugee is a person who qualifies for asylum. A person is a refugee if they meet all three of the following criteria:
- Currently outside of their home country;
- Unable or unwilling to return, because of
- Persecution on the account of their race, religion, nationality, participation in a particular social group, or political opinion.
3. Can I be turned away at the border if I am a refugee?
The United States is bound by international treaty not to turn people away at border if they have a “credible fear.”
4. What is a “credible fear?”
A “credible fear” is a determination made by the CBP. The alien will either be granted a Credible fear interview or go straight to Removal.
Credible fear
(i) Met defensive application
(ii) Not met Review by immigration Court
- Credible fear met Defensive application
- Credible fear not met Removal
Note: “Credible fear” is a lower standard than “well-founded fear.”
- Credible fear is only used at the border.
- Any other time, well-founded fear is the standard.
5. Can I be deported if I am granted asylum?
e. Asylum is a defense to removal, similar to cancellation of removal.