Prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), the legal process of deporting a foreign national was called “deportation” proceedings and concerned a foreign national who was already present in the U.S. At that time, there also existed a procedure called “exclusion”. “Exclusion” concerned a foreign national who was trying to gain admission into the United States.
Following the enactment of IIRAIRA, both deportation and exclusion are now referred to as “Removal” proceedings. Besides an Immigration Judge, an officer of United States Customs and Border Protection can summarily remove a foreign national from the United States without a hearing before an Immigration Judge. If a foreign national is at the United States border and found to be removable, he or she will either be turned away at the border or if at an airport will be placed on the next flight to his or her native country.
If the foreign national is within the U.S. and receives an order of removal from an Immigration Judge, if that person is not already in Immigration detention he/she would have to leave the U.S. immediately. Those who are already in Immigration detention and receive an order of removal from an Immigration Judge are generally escorted under safeguards by U.S. Immigration officials to their native country.
The difference between inadmissibility and deportability
Inadmissibility: An individual’s inadmissibility for entry into the United States can be determined at the United States border or entry point by officers of the U.S. Customs and Border Protection (CBP).
For those individual’s already in the United States who may be deportable, those determinations are made generally in Immigration Court before an Immigration Judge.
With the enactment of IIRAIRA, proceedings to determine inadmissibility and deportability are now known as removal proceedings, and there is not really a distinction anymore between the two concepts. If someone is determined to be removable, therefore, they are subject to receiving a removal order and must leave the United States. In instances of inspections at the United States border, however, foreign nationals can in fact be determined “inadmissible” and will not be allowed entry into the United States. Those individuals are generally either allowed to withdraw their applications for admission into the United States or are simply denied entry into the United States and must immediately depart.
DEPORTATION FROM THE UNITED STATES
Who can be deported/removed for what reasons?
Any person who is not a U.S. citizen can be deported from the United States. The most common reason a permanent resident is removed from the United States, for example, a conviction of a serious drug offense or murder. That person can be deported to their home country.
The most common reason non-permanent residents are deported/removed is because they entered the United States without inspection or without valid entry documents, or because they entered legally on some type of visa, but then overstayed the period of time they were authorized to remain.
Crimes that make one deportable
The following types of crimes can make a person deportable from the United States:
- Crimes of Moral Turpitude (or the admission of such crimes). A crime of moral turpitude involves a crime that has been defined or considered to be a crime that involves in itself a morally reprehensible and intrinsically wrong conduct or acts, such as assault, aggravated battery, carrying a concealed weapon with intent to use it, child or spousal abuse, disorderly conduct, aggravated driving under the influence, kidnapping, murder and involuntary manslaughter, unlawful restraint, robbery, threats and terroristic threats, adultery, lewdness, prostitution, rape, arson, blackmail, larceny, burglary and
- Drug offenses;
- Money laundering;
- Two or more offenses, if the aggregate confinement sentence imposed is 5 years or more;
- Significant traffickers in persons; and
- Serious crimes committed by diplomats or other persons who have been granted immunity from prosecution.
Parties in a deportation/removal case?
Since the passing of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”), there is no longer a distinction between the terms “deportation” and “removal”. As such, deportation cases are now known as a “removal proceedings.” Accordingly, the key parties in a removal case are the same as those in a deportation case, as stated above:
- The Respondent- this is the person who is facing a deportation case, who is accused of violating the immigration laws of the United States, and is therefore subject to a possible deportation at the Immigration Court.
- The Immigration and Customs Enforcement (“ICE”) officer in charge of the Respondent’s case- this person works for ICE and is the officer in charge of the Respondent case when the Respondent has been detained by ICE. This person has the authority to supervise the Respondent’s case, particularly while the Respondent is detained, and can make decisions such as whether the Respondent can be released either on bond or an order of supervision.
- The Chief Counsel (or Assistant Chief Counsel): is the attorney that represents the United States government in the Immigration Court. This attorney’s duties are like those of a prosecutor, who is in charge of enforcing the Immigration Laws, and seeks to prove that the Respondent is deportable or excludable from the United States.
- The Immigration Judge: is the Trier of fact in the Immigration Court, which is known as the Executive Office of Immigration Review. The Immigration Judge has the responsibility to review and adjudicate the facts and evidence presented to rule if a person is or not deportable from the United States and if the person is eligible for a remedy that will stop the deportation proceedings and give the person legal status in this country.
- The Immigration Attorney- this is an attorney representing the interests of the responsible for representing the Respondent in Immigration Court. This person defends the Respondent against deportation.
The information contained on this page is for educational and informative purpose only. This response does not constitute legal advice. The readers of this information should not act based solely on information contained herein.
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