When an individual who is in the country illegally (or is apprehended crossing the border without the necessary paperwork) is removed from the United States, it is known as deportation. Customs and Border Protection (CBP) or Immigration and Customs Enforcement (ICE) are the two agencies that carry out deportations. In 2018, CBP and ICE conducted 337,287 deportations of unauthorized immigrants. This was a 17 percent increase over 2017, yet even so, deportations remained below levels recorded during the majority of the Obama administration (Between 2012 and 2014, there were more than 400,000 deportations per year). In 2019, a little more than half of all Americans interviewed told the Pew Research Center they are in favor of increasing deportations, however, those views split sharply according to party affiliation with 83 percent of Republicans favoring increased deportations, and only 31 percent of Democrats.
Since the Biden administration took office there have been a number of Executive Orders regarding immigration, with some of those undoing the policies of the prior administration. As an example, the new administration created a task force to address the harm of the family separation policy. The Migrant Protection Protocol introduced in December 2018 resulted in some immigrants being taken to family immigration detention centers, including the Reading, Pennsylvania Berks Family Residential Center, pending deportation. Additionally,—and unfortunately for many immigrants—the public charge rule has left immigrants who used public U.S. benefits inadmissible for a future green card, although the current administration has said it will review this policy. It is difficult to know how the potential immigration changes will affect deportation processes in the future in Pennsylvania and across the United States.
Defenses to Deportation Laws
When an Immigration Judge finds an illegal immigrant in the United States, it does not necessarily mean the person must absolutely be deported. In fact, there are a number of defenses available to those targeted for deportation, including the following:
- Adjustment of Status—If you are the parent, spouse, widow, or child of a U.S. citizen, you may be able to stop deportation proceedings by having your status adjusted to Lawful Permanent Resident. Further, if your priority dates for permanent residence are current (i.e., you obtained conditional permanent residence based on your own marriage or the marriage of your immigrant parent to a U.S. citizen), then once you are placed under deportation you can apply to have your status adjusted.
- Asylum—If you have a well-founded fear of persecution if you are returned to your home country due to your political opinions, your nationality, your religious beliefs, your membership in a social group, or your race, you may be granted asylum, then after a year has passed you would be eligible to apply for permanent resident status.
- Withholding of Deportation—Withholding of Deportation is very similar to asylum, however, it does not allow you to apply for permanent residences, and it only prohibits your deportation to one specific country.
- Legalization and Amnesty—If you qualify for legalization or amnesty, your deportation hearing is likely to be closed, as you have attained the legal right to remain in the U.S.
- Waivers—when you ask for a waiver from the U.S. government, you are essentially asking that the government forgive or overlook the inadmissibility grounds, granting you status as a lawful permanent resident (green card) or another specific benefit. Section 212 of the INA (Immigration and Nationality Act) states the grounds of inadmissibility under which a waiver application is allowed. The waivers require you to establish a hardship to yourself or your close family members if you were to be removed from the United States. Further, if you committed fraud or made a material representation, you can apply for a waiver under the same grounds—that it would require you to establish a hardship to yourself or a close family member.
- Cancellation of Removal for Non-Permanent Residents—This is also known as the “10-year law.” An Immigration Judge can cancel deportation proceedings if you have been physically present in the U.S. for a continuous period of ten years prior to deportation proceedings (or if you served a minimum of 24 months in the U.S. Armed Forces, serving honorably). You must have also been a person of good moral character for those 10 years, cannot be inadmissible under criminal or security grounds, and have an exceptional and extremely unusual hardship as a qualifying U.S. citizen.
- Cancellation of Removal for Permanent Residents—Immigrants who have had their status of lawful permanent resident removed and are about to be deported can ask for Cancellation of Removal for Permanent Residents. If approved, this would forgive the basis for the deportation, returning your status to lawful permanent resident. There are only specific grounds of deportation that can be waived by a Cancellation of Removal. Further, an immigrant is eligible for only one grant of this type of relief throughout his or her lifetime. A denial of the Cancellation of Removal results in an administrative order that returns you to your country of designation via deportation. When considering a Cancellation of Removal, the Immigration Judge will consider both positive and negative factors when determining whether you will be allowed to stay. These factors include family ties, employment history, length of U.S. residence, criminal record, any past immigration violations, property and assets, community service, rehabilitation and remorse, evidence of bad character, failure to pay taxes, etc. The Immigration Judge has broad discretion whether to grant or deny a Cancellation of Removal, but the following must be true for approval:
- There are no security grounds that would make you inadmissible to the U.S.
- You have no aggravated felony convictions.
- You have resided in the U.S. for at least seven years.
- If you are a Lawful Permanent Resident, you must have been an LPR for a minimum of five years.
- Cancellation of Removal for Battered Spouse—If you are a battered spouse who has been placed into deportation proceedings, you may qualify for cancellation of that removal if you can show at least three years of continuous physical presence in the U.S. You must have no aggravated felony convictions and must not be inadmissible under the following grounds: criminal, security, marriage fraud, or document fraud. You must also be able to show that your removal from the United States would cause extreme hardship.
- Suspension of Deportation Proceedings—Your deportation proceedings may be able to be halted if you can clearly fulfill these three conditions:
- You are a person of good moral character.
- Your deportation would cause extreme hardship on you, or on your spouse, your children, or your parents who are citizens or residents of the United States.
- You have been physically present for at least seven years, in a continuous manner.
- Pending Citizenship—If you have fulfilled the requirements for naturalization, you may request that your deportation proceeding be terminated, or be postponed until the results of your citizenship application are known.
- Voluntary Departure—Finally, if you do not qualify under any of the above deportation defenses, you can apply for Voluntary Departure. Once you have applied for Voluntary Departure you have four months to prepare for your departure and leave the United States. In some cases, this is your best option, as you may, in many cases, eventually return to the United States. You are only eligible for Voluntary Departure if you have the means to pay your own airplane ticket, have established good moral character during the prior five-year period, agree to depart within the four months, and are not being deported on aggravated grounds.
Finally, actual citizenship is a defense against deportation. You cannot be removed if:
- You were born in the United States, including Puerto Rico.
- You were born in another country, but one of your parents lived in the U.S. and was a U.S. citizen prior to your birth.
- You were born in another country, but one or both of your parents became naturalized, becoming citizens when you were under the age of 18 and living in the U.S. as a lawful permanent resident.
- You were found in the United States when you were under the age of five years, and your parents are unknown.
There are other potential situations that could make you a U.S. citizen, however, the laws are extremely complex, with a number of requirements. As an example, if your parent or grandparent was a U.S. citizen, you may be a U.S. citizen. To claim citizenship, it is important that you have the facts surrounding your birth: where and when you were born, whether your parents were legally married, when your parents and grandparents were born, and when they lived in the United States, etc.
If you are in danger of being deported, it is essential that you speak to an experienced Pennsylvania immigration attorney who can determine whether you have a valid defense against deportation. It is important that you do this as quickly as possible, as every minute counts in this situation.