Deportation Defense & Waivers
What things make someone “inadmissible?”
What criminal convictions make someone “inadmissible?”
What can you do if the government says you are “inadmissible?”
How can you fight a removal case?
What might make you “deportable?”
How do “removal” cases with the immigration judge work?
What can you do to stay in the United States if you are “deportable?”
Who can help with your ‘removal’ case?
What happens when your ‘removal’ case is finished?
There are two lists of reasons that someone can be refused a visa, denied permission to enter the United States, or removed from the country. Reasons on the first list are called “grounds of inadmissibility.” They apply to people who are trying to get a visa—whether at a U.S. embassy or consulate, or through “ adjustment of status. ” They also apply to people who are trying to use their visa or “greencard” to enter the United States through an airport, seaport or land border crossing. They even apply to certain people who are already inside the country if they did not enter legally.
The second list applies to people who are already inside the country. Things on the second list are called “grounds of deportability.” The grounds of deportability apply to people who are here legally and to people came here legally but no longer have legal status. If the government decides that there is a ground of deportability that applies to someone, they will start removal proceedings against that person in immigration court. “Removal” is a legal term that replaced “deportation” in 1996. There are some very technical legal distinctions between removal and deportation, but most of those differences are not important to understanding the removal process in general terms.
There are many grounds of inadmissibility, including certain diseases, lack of financial support or an ability to support yourself, past immigration violations, criminal convictions, misrepresentations (lies or fraud) made to the U.S. government, and others. Some can be forgiven ("pardoned" or "waived"); others cannot. The most common grounds of inadmissibility that can be waived are misrepresentations and criminal convictions. Two examples of misrepresentations that can make you inadmissible are a lie that you told on a visa application or using someone else’s visa or green card to enter the country. You can only qualify for a waiver of a misrepresentation if you have a parent, spouse or child who is either a U.S. citizen or lawful permanent resident. To actually get the waiver, you need to show that those family members would suffer “extreme hardship” if you were not given your visa or allowed to enter the country legally.
There are many different kinds of criminal convictions that can lead to inadmissibility. Violent crimes and drug crimes make it very difficult or impossible to get a visa. Theft and fraud crimes are also very serious and may make you inadmissible. It is important to realize that serving your criminal sentence and completing probation does NOT make a difference in how the conviction affects your immigration. With a very limited exception, it will not even help to have your conviction expunged—that is, erased from your record. U.S. immigration law says that if you were found guilty or admitted guilt and received some kind of punishment—including probation—then you will be treated like you were convicted, no matter what happens later. Sometimes admitting criminal activity can make you inadmissible, even if you were never arrested or charged with a crime.
Some grounds of inadmissibility can be excused—or “waived”—by the government. Some cannot. The requirements for getting a waiver depend on the ground of inadmissibility that applies in your case. There are two grounds of inadmissibility that cannot ever be waived, except for people who are already lawful permanent residents (and, even then, only in limited circumstances). The first is if you are not a U.S. citizen but ever claimed to be a U.S. citizen for a reason relating to immigration—like trying to cross the border from Mexico or Canada. The second is if you ever helped someone else (except a very close family member) to try to enter the country illegally. Unless you are already a lawful permanent resident, the only way to beat these grounds of inadmissibility is to prove to the government that they never happened.
If any of the things mentioned above applies to your case, you should talk to an immigration attorney with experience in these types of cases BEFORE you contact U.S. immigration authorities. If you have already applied for your visa and an immigration officer thinks that you are inadmissible, he will tell you. He should also tell you if you are eligible for a waiver; but immigration officers are human and they make mistakes. If you have been told that you cannot be given a visa, talk to an immigration attorney about your case to see if the government made a mistake.
There are different kinds of waivers available for different grounds of inadmissibility. Your eligibility for a waiver may depend on a few different factors—like any history you have living in the United States, any family members you have here, how recently your immigration violation or conviction occurred, and others. An immigration attorney with experience on waiver cases will be able to tell you about all of the factors that will be considered in your case and will be able to put together the strongest possible application for you.
The first thing to know about removal cases is that different rules apply depending on when and where you were caught by immigration officers. If you were caught at the border when you were trying to cross into the country (or if you entered the country illegally and cannot prove that you have been here for more than two years) you can be charged as an “arriving alien.” That classification means that you can be charged with removal based on the grounds of inadmissibility discussed above. It may also affect your eligibility for release from detention on bond and your eligibility to apply to the immigration judge for permission to stay in the United States.
People who are caught after they have been in the United States for a while are usually charged with a ground of deportability. The list of reasons that make someone deportable is very similar to the list of grounds of inadmissibility. But because the lists are slightly different, sometimes someone might be deportable but not inadmissible, or the other way around—inadmissible but not deportable. If you are deportable but not inadmissible, you might be able to immigrate (or re-immigrate) in immigration court to solve your problem with deportability. If you are inadmissible but not deportable, the government might not be able to deport you, even though it would be able to keep you from coming back to the country if you ever left. You should only trust a licensed attorney with experience in these types of issues to advise you about the options in your case.
The judge has two basic decisions to make in every immigration ‘removal’ case. First he has to decide if the government is right about the reasons it wants to remove you from the country. For example, the government might want to deport you because you have a criminal record; but not all crimes make you deportable, and sometimes a past conviction does not count for immigration cases. Or the government might think that you were purposefully trying to help someone cross the border illegally, but you might have thought the person was a U.S. citizen. Sometimes the government even tries to deport U.S. citizens by accident. You can tell your side of the story to the judge if you think that the government’s reason for wanting to deport you is wrong. So the first part of your case is having the judge decide if there is any reason to deport you.
If the judge decides that you are deportable, then he needs to move on to the second part of the case and decide if there is any way for you to get “relief” from deportation. There are different kinds of “relief” from deportation that the judge could give you. If you would be eligible to apply for an immigrant visa or greencard through the regular processes, you might also be able to apply to the immigration judge for a greencard—or reapply for a greencard, if you already have one. If you are afraid for your life or safety in your home country for certain reasons, you might be able to ask the judge for asylum. If you have been in the United States for a long time, you might also be eligible to apply for a type of forgiveness called cancellation of removal.
You might be eligible for one of these types of relief from deportation, or you might be able to apply for all of them. If it looks like you qualify for some type of relief from removal, the judge will give you a chance to file an application for that type of relief. There are different application forms and different documents that you will need to give the judge for each type of relief you want him to consider.
It is very important to document your case completely for the judge; it is difficult to win a case on your testimony alone. An experienced immigration attorney will know what the judge is looking for and will help you put together all the documents that could be important for the judge to make his decision.
A good attorney will also help prepare you and your witnesses for what to expect when you testify in court. Most people are nervous when they testify in court; and nervous people do not always make the best witnesses. That is why it is important for witnesses to know what to expect. Proper preparation will help them keep their composure and tell the judge what he needs to know.
In the end, the judge will decide whether you get to stay in the country or whether you must go. If you are allowed to stay, you will be given a greencard or some sort of protected status, like asylum. If you must leave the country, the judge might allow you to leave on your own—which is called a “voluntary departure”—or he might order that the government send you back to your country—a “deportation.” The difference between voluntary departure and deportation can be important in some cases. If you are deported, you will not be allowed to get a visa to return to the United States for a long time. On the other hand, a voluntary departure will not necessarily affect your ability to get a new visa to come back to the country legally in the future. Your eligibility to return to the United States legally after a voluntary departure involves many technical provisions of law, and you will need an attorney to sort it all out.