The Deportation Process

The deportation process is initiated generally by the Department of Homeland Security featuring what used to be called an “Order to Show Cause”, but it is now called a Notice to Appear (NTA). The NTA will state that the person is required to appear in Immigration Court and why he or she is being alleged to be deportable.

In the NTA, it lists the allegations on which the deportation is based upon. For example, it may say that you are from a certain country, that you entered the U.S. on this date under this status, subsequently on this date you are convicted of a certain crime, etc. The NTA will also provide the statutory grounds of removal or inadmissibility. The NTA is served generally in person on the foreign national. But it can also be served by mail.

What are the consequences of being deported?

Once successfully deported, you will now be required to leave the U.S. within a certain time frame.

Even if you are otherwise eligible to come back to the U.S. in a different manner, if you do not comply with the requirements of your deportation, you may be barred from future immigration applications.

The main consequence of being deported by an Immigration Judge is that after you have left the U.S., you are required to remain outside the U.S. for 10 years. Of course, it depends on how you are deported. Deportation can occur at the border, through what is called expedited removal, or at an Immigration Court. If you are deported by “expedited removal”, you may not be allowed to return for 5 years. But depending on the circumstances of your deportation, an expedited removal can be increased to a 20 year bar.

This is why an experienced immigration lawyer will strategize with the client and educate him or her on the consequences of deportation. Often, it is better to find a different application of relief rather than going through the actual deportation process. For example, if you do not have a great case, it may be in your interest to request Voluntary Removal or Voluntary Departure, which requires you to still leave the U.S. but not under a “deportation” order.

 

The difference between voluntary departing the U.S. and a deportation order sometimes rests on whether you can successfully petition the U.S. for permission to reenter the U.S. through the I-212 process. But this is only one form of “waiver” needed. Many persons who are deported or seek voluntary departure may still need to deal with the unlawful presence bar, which requires an extreme hardship application waiver, or other issues.

 

The deportation court process

 

The first hearing is often called a “preliminary court hearing” or “master calendar hearings”. Sometimes there may be a bond hearing that occurs first or after the master calendar hearing if the person is being detained. After the master calendar hearing, then a case goes to a trial. This “trial” is called a “regular calendar” or “individual calendar” hearing, where there is an actual adjudication of an application for relief or a finding that somebody is removable.

 

Can you appeal a removal order?

 

Yes, removal orders can be appealed initially. The person can make the motion to reopen or reconsider their removal order to the immigration judge. If that is unsuccessful, she or he can file an appeal or motion to the Board Immigration Appeals (BIA) which is located in Falls Church, Virginia. If the removal order is upheld by the BIA, the noncitizen may seek a petition for review at a U.S. Court of Appeal. For example, San Francisco is under the jurisdiction of the 9th Circuit Court of Appeals.

 

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What might get a person deported from the U.S.?

It depends whether you are an immigrant or a non-immigrant. U.S. citizens cannot be deported. If you are an immigrant and you have a green card, you can be deported for certain criminal convictions – crimes that are referred to as aggravated felonies. Aggravated Felonies are often violent crimes against a person, like assault with a deadly weapon. Many crimes which carry a conviction of a year or more can become an aggravated felony. Even if your crime was not aggravated, it may still be considered a Crime of Moral Turpitude. Knowing how the crime is classified or how you may be allowed to plead in your criminal case requires an experienced attorney because conviction of a crime is a major source of people being deported.

Other reasons for deportation include people who violated their immigration status in some way, someone who works illegally, or someone who overstays a visa.

Similarly, someone who enters the U.S. illegally, that is without inspection and permission, can be deported or removed.

 

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Does every applicant who gets chosen in the lottery automatically get a visa?

No. Just because you are chosen in the lottery doesn’t automatically mean you are going to get a green card or immigration to the U.S. In addition to all of the admissibility issues we cover in other blog posts, the person must still wait in line for their number to be picked. Every region only has so many visas to give. As the fiscal year continues, the Embassy calculates the number of DV applicants. If your number is not reached within the Fiscal year, you are not permitted to apply for the Immigrant Visa.

How much can a lawyer do to help someone in the lottery process?

Because it is such an easy online process, most people are able to handle the registration process on their own. It is only after they are selected that the attorney gets involved, especially for individuals or students who are already here in the U.S. Sometimes speed if of the essence when dealing with the DV Lottery process, especially because it is supposed to take place within the fiscal year the person is chosen.

If they are going through the process in their home country at the embassy, they can still hire an experienced immigration attorney like you to help them through the process?

Absolutely. It is not uncommon for individuals to hire an attorney in the U.S. to help them in the process. This is the way it has been for many years.

 

 

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What is the immigration lottery?

Over the years, there has been various immigration legislation passed in an attempt to broaden the range of countries that send immigrants to the U.S. As part of that effort, the immigration lottery is intended to diversify the whole country and the nationalities of the people immigrating to the U.S.

The immigration lottery, which is also known as the “diversity lottery program” or DV lottery”, after several generations, was finally revised as a method to choose those countries that are considered under-represented in the nationalities of people emigrating to the U.S.

There are a lot of reasons for the number of visas in the lottery going to various regions of the globe. Based on different considerations, some countries get into the lottery and some do not, but the overall purpose was to diversify the nationality of immigrants coming to the U.S.

How does the U.S. determine which countries get to participate and which countries don’t?

Normally, the U.S. government looks at the amount of immigration from the various countries in the last 5 years. Since the law’s goal is to diversify the immigration population in the U.S., they look at the past 5 years of immigration patterns from each country to determine which countries have the highest number of immigrants coming into the U.S. For each DV lottery, the government publishes a list of which countries are allowed to apply for the lottery through an online registration program. This list is derived from the information discerned through the volume of immigration.   

How many countries can participate in the lottery?

Each year, the number of countries and which countries may participate is updated. Of course, there are several countries that are consistently not included. For example, China, the Philippines, Mexico and India are backlogged through the sponsored immigrant visa process. This means they have a high volume of people immigrating to the U.S. These countries are usually not included in the DV Lottery. Otherwise, most countries can apply but again it depends upon the number of immigrants who have been coming from the particular countries for the last five years. For example, natives from Bangladesh, Canada, and Brazil are also not allowed to register for the lottery because they have high levels of immigration coming into the U.S.

 

Is the lottery conducted annually?

 

Yes. It is an annual process.

 

Is there anything that a prospective immigrant can do to increase their changes through the lottery program to get selected?

 

No. It is purely random.

 

Can anyone from a country that isn’t excluded apply to be in the lottery?

 

No. The DV Lottery still has additional requirements. For example, the DV Lottery for Fiscal Year 2019 still maintains a requirement that the application have completed the equivalent of a U.S. high school education or have worked in a qualifying job for two of the last 5 years. The list of qualifying jobs may also change from year to year.

 

Additionally, as with any other visa, the applicant must be of good moral character and satisfy other visa requirements. The only difference in the lottery program visa process is that the person does not have to be sponsored by anyone in the U.S.

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How much discretion does the immigration officer have when conducting a marriage visa interview?

In marriage visa interviews, the government tries to have them conducted in a uniform manner. With that said, most experienced examiners naturally use their own experience and knowledge to guide the interview process. Immigration officers performing these interviews have considerable training and specific requirements. They know what needs to be seen on certain documents and certain information needs to be given during the interview. Generally, the USCIS does a very good job of determining whether a marriage is bona fide.

 

There is some discretion given to the officers to collect all of the facts and then making their decisions. Overall, they are well trained in doing it in a consistent manner. But if an officer believes a case is deniable, they must usually seek confirmation by presenting the facts to a superior examiner.

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