The following are some of the most frequently asked questions about immigration.
Who can be deported?
The short answer:
Any person who is not a citizen can be deported from the U.S. Certain immigrants are particularly at risk for deportation.
Immigrants with certain convictions can be deported, barred from adjusting their status to lawful permanent residency or prohibited from returning to the U.S. after a trip abroad. This includes:
- Lawful Permanent Residents (LPRs, or green card holders)
- Asylees and refugees
- People who have been granted withholding of removal or temporary protected status (TPS)
- People who have applied to adjust their status
- People on tourist, student, business, and other visas
The types of convictions leading to deportation are very broad and even include offenses that the criminal judge considered minor enough to warrant no time in jail. This deportation is like a second punishment that happens after immigrants finish their criminal sentence and can happen years after the conviction.
Undocumented immigrants are deportable whether or not they have a conviction. However, any arrest or conviction will make them more likely to be discovered by Immigration and may also affect whether they can adjust their status. This includes:
- People who “entered without inspection” – for example, walked across the border without going through immigration
- People with old deportation orders – remember that some people may have old deportation orders, even if they don’t know it – for example, if a green card application was denied and person did not get notice that the government had started a deportation case
- People who have overstayed a visa
Can US Citizens be Deported?
US citizens cannot be deported. However, the government can attempt to take away the citizenship of a naturalized citizen if they can show that her naturalization was gained through fraud – for example, if a person did not disclose an arrest or conviction on the naturalization application. A person whose citizenship is stripped may again be vulnerable to deportation.
How do immigrants end up in deportation proceedings?
Where are immigrants most often detained?
Everyday Locations: Workplaces, Homes, Streets, Buses, Trains…
In late 2006, Immigration authorities began conducting raids more aggressively. Immigration agents are now boarding Greyhound buses and Amtrak trains in some states (near and away from the border), demanding “status documents” and arresting those who cannot produce them. They are also arresting people on the streets, in their homes, and at their workplaces. Especially during home raids, Immigration often uses deceptive tactics to get non-citizens to open the doors to their homes (what Immigration will call “consent” to allow them to enter). They also often don’t obtain the proper judicial warrants necessary to legally enter homes and workplaces.
Being Stopped by the Police
Immigrants are now increasingly getting stopped for minor offenses – such as broken tail lights and minor traffic offenses – in communities where the police have decided to take on federal immigration enforcement duties. The police often use these stops to question people about their immigration status and to turn immigrants over to Immigration and Customs Enforcement.
A police stop is most likely to result in immigration involvement if the person has an old order of deportation – especially since the Department of Justice began entering this information into the National Crime Information center (NCIC) database, which is accessed by law enforcement. In addition, many jails and prisons participate in the Criminal Alien Program, through which ICE agents interview immigrants at local jails and lodge detainers preventing release from custody. Many also participate in ICE’s “Secure Communities” program, through which fingerprints of all arrestees are sent through a DHS database, flagging people for detainers. Some local governments have also entered into “287g agreements” with the Department of Homeland Security, which give them authority to enforce certain immigration laws.
Through these policies and programs, green card holders with a past conviction or undocumented immigrants with no convictions may be turned over to ICE even if criminal charges are dropped, or the person is found not guilty of the criminal charges.
After Leaving The Country and Trying to Reenter
At an airport, seaport, or at land borders, Immigration agents may detain non-citizens if they have an old conviction (even a violation or misdemeanor), false papers, no status, or an old deportation order. Green card holders with old convictions are often detained at this trigger site – even if they have traveled outside the US many times since the conviction.
When Applying For Citizenship, Adjustment Of Status, Asylum, or TPS
Many immigrants with old deportation orders or past convictions are detained when they apply for legal status or citizenship. Some undocumented immigrants apply for benefits for which they do not qualify (for example, because of bad legal advice or to get a temporary work permit), putting them on immigration’s radar and at greater risk.
During or Upon Finishing a Criminal Sentence (incl. Parole, Probation)
Immigrants may be sent to ICE after completing a jail or prison sentence, or a drug rehabilitation or other alternative program. They may also be sent to ICE while on parole or serving a sentence of probation. ICE officials are increasingly coordinating with probation and parole departments.
Why focus on immigrants who have contact with the criminal justice system?
Why focus on immigrants who have contact with the criminal justice system?
The criminal justice system is now the primary pipeline into the deportation system. This is as a result of local and state police now collaborating with Immigration & Customs Enforcement (ICE) on a regular basis. Through Agreements of Cooperation in Communities to Enhance Safety and Security (ACCESS) programs, police pass on information to ICE about suspected noncitizens in their custody and refer them to ICE for deportation. In the first quarter of 2010, 43 percent of noncitizens in immigration detention had had some kind of contact with the criminal justice system.
Even though immigration laws have long penalized noncitizens with convictions, laws passed in 1996 made deportation a mandatory minimum for both documented and undocumented immigrants who have had almost any kind of conviction. These enforcement programs have been created to funnel people from the criminal justice system into a deportation system that lacks fundamental fairness and due process. The result is that for many immigrants who have ever had contact with the criminal justice system, detention and deportation is now an unfair second punishment. In 2008, 37 percent of deportees were deported because of a criminal charge or conviction.
Are people allowed to return to the US after being deported?
Every year, deportations tear apart thousands of families, communities, and businesses. Naturally, many people want to return to the communities they were forced to leave behind. Unfortunately, it is very difficult to return to the US after being deported. Many people will never be able to return. In addition, if people who were previously deported return to the US without authorization, they can face strict criminal prosecution and imprisonment.
Still, people who were deported can try to apply to the Department of Homeland Security for readmission. Furthermore, families in the United States can begin to collectively pressure the US government by leveraging the power of Congress members and the media, to reunite with their loved ones.
People who have been deported face a number of obstacles in returning to the US. In order to return to the United States after being deported, you must overcome two barriers: First, you must have a basis to apply for permission to come to the US. Second, you must apply for and receive one or more waivers to remove any applicable bars to reentry. There are no “official steps” that, upon completion, will win return, and it does not happen often.
|SUMMARY OF BARS TO REENTRY for PEOPLE WHO HAVE BEEN DEPORTED|
|Bar to Reentry*|
|Unlawful presence in US for less than 6 months||No Bar|
|Unlawful presence in US for over 6 months & less than 1 year||3 years|
|Unlawful presence in US for one year or longer||10 years|
|Ordered removed on inadmissibility grounds||5 years|
|Ordered removed on deportability grounds||10 years|
|Ordered excluded/deported under pre-1996 laws||10 years|
|Ordered removed two times||20 years|
|Failed to attend removal hearing||5 years|
|Ordered removed after a conviction for an aggravated felony||Permanent|
What are alternatives to detention?
Answer: Laws that require jailing thousands of immigrants while they fight their deportation cases are inhumane. Even in the criminal justice system, people facing charges can at least request bail. Many immigrants are transferred to for-profit detention centers thousands of miles from their homes, do not have access to lawyers, and are pressured to accept deportation to escape the deplorable conditions.
Currently, ICE may select someone to participate in an alternatives to detention program (ATD). ATD means that someone is released from a jail or prison facility on conditions of supervision, employment verifications, home check-ins, call-ins, or an electronic monitoring device. Advocates have called on the government to provide less restrictive monitoring, including community-based alternatives.
How are you selected to be in the alternatives to detention programs?
Under the current law, ICE always decides who can enter the program. They currently do not use a screening tool, so it is in the discretion of a deportation officer to decide for whom an ATD would be appropriate. A deportation officer can recommend release onto an ATD, but it is a supervisor’s decision to release under these conditions. Guidance and a screening tool are being developed by ICE headquarters to standardize these decisions.