Most people would be surprised to learn that it can take years and even decades before a person is removed and deported from the United States. This is partly due to the extensive backlog in immigration courts, and partly due to aggressive and competent representation by the attorney representing the non-citizen in fighting the deportation.
The Deportation and Removal Process
The process begins with the service of a Notice to Appear by ICE and is usually followed by multiple court appearances and appeals and then detention and removal for those individuals who have lost their cases. Depending on whether you have access to counsel, your criminal history, and other factors, your case will end up being heard by one judge at the Immigration Court level and often by a panel of judges at the appellate (BIA) level. It's important to understand that even if you're found not removable in court, there's still a chance that ICE will appeal that decision.
If you're undocumented (or have violated your immigration status) and living in the United States, it's important to know how long your deportation process might take. On average, cases that qualify for the expedited removal process can result in a removal order within a few weeks. However, the standard removal/deportation case can often drag on for many years depending upon how backlogged the court is and how aggressively your lawyer fights for you. Our firm has seen multiple cases that have stretched out for a decade or longer as a result of multiple hearings, motions, and appeals.
Furthermore, even if you lose before the trial and appeals courts a removal order doesn't necessarily mean that the undocumented individual or Immigration violater will be deported right away. Once the deportation order has been entered and upheld on appeal, your fate rests in the hands of how willing your country of citizenship is to take you back.
Our immigration enforcement process consists of several steps: executing a removal order from an immigration judge; coordinating with federal agencies such as ICE for assistance carrying out that order; turning over any foreign national who is ordered removed to a country that will accept them.
What this means is that the timeline of your deportation process can vary significantly depending on where you live, what country you came from, what type of visa or immigration status you have, and if there are criminal convictions or security risks in your past history.
The deportation (removal) process typically begins when the undocumented individual (or individual who violated his status) is arrested by local police for another crime. Another common scenario is when individuals rely on the advice of non-attorneys and unwittingly turn themselves into Immigration by filing applications that they are not qualified for. Immigration will then deny the application and proceed with formal removal proceedings. Whether the offense is serious or minor, it may lead to contact with ICE who will determine whether they are an undocumented person or in violation of US immigration law and refer them to an immigration court where judges routinely order their removal from this country.
The deportation process involves a series of steps, which usually include:
Expedited removal assessment – ICE will determine the status of a non-citizen based on their proximity to the nearest border and how long they have been in America. If an individual qualifies for expedited removal, he or she is likely to be deported without a court hearing within a few weeks.
The Notice to Appear is the first document that an individual will receive after being detained by ICE if they do not come under the expedited removal process. This document notifies them of their removal proceedings, specifies the factual allegations against them and the law that the government is using as a basis for their removal. It also tells them when they need to appear in court for a hearing before the immigration judge.
Detention– if ICE has not already detained the individual (known as the respondent once he or she is served with the notice to appear), they'll likely arrest and detain them at this point. ICE does have the discretion and authority, however, to release the individual without extended detention.
If an individual is caught by ICE, they will be assessed for whether or not a bond needs to be paid. If ICE determines that the case does require one, the case goes before immigration court who reviews the decision and can set a bond. However, there are a significant number of Immigration violations that do not allow for any bond whatsoever. Those cases of mandatory detention require that the respondent remains in ICE custody.
A master calendar hearing is the first major step for a foreign national who has been accused of illegally residing in America. At this hearing, you will be charged with your violations and state whether or not you admit or deny those facts and the underlying charge(s). The court will then schedule another court date to decide what defense against deportation and/or applications can be considered at trial (Individual Hearing). However, before doing any of that the Judge will utter what may be the most important words you will hear in this entire process. Those sentences will tell you that you have the right to be represented by an attorney at your hearings. Judges as a rule tend to grant liberal and extensive continuances for individuals so that they can obtain an attorney. The Judges fully understand the complexity and severity of the Immigration laws and do not want people to end up being deported when it isn't really necessary.
The merits hearing (also commonly called an Individual Hearing )is a time to present testimony, evidence, and arguments against deportation. These arguments can take the form of showing that you are not in fact deportable under the law or that even if you are deportable you should be granted relief from deportation and removal. A merit hearing may take anywhere from a few hours to several days, depending on the case. Many people refer to the merits hearing as a trial since it has many similarities to trials conducted in criminal or civil court.
When the judge rules against a respondent, finds him or her removable, and declines to grant relief, a removal order is usually entered at the conclusion of the merits hearing although it is not uncommon for the Judge to set an additional hearing in order to render a decision.
If you lose your case and receive a removal order, you have 30 days to appeal the court's decision. The appeals process can take years depending on how complicated your case is and how backlogged the Board of Immigration Appeals might be. A properly filed Notice of Appeal gives you an immediate benefit since in most cases it automatically bars the government from executing the removal order until the Board has an opportunity to rule on your appeal.
If the Board of Immigration Appeals upholds the Immigration Judge's removal order the next option for relief would be to seek relief in the Federal Courts. Since this option is taken by some respondents however most people do not seek relief from the Federal Courts since it tends to be a highly complex and expensive process.
Assuming that all appeals are exhausted and no other relief is available the respondent will eventually be taken into custody by ICE. ICE will then physically deport the respondent as soon as the receiving country agrees to accept him or her and proper travel documents and arrangements are made.
Factors That Impact the Deportation Timeline
During the deportation process, there are a number of factors that can expedite the process and various other factors that can slow it down. Here is an overview of some of the more common factors:
Length of Time in the United States...While in previous years, only individuals who had been in the country for less than two weeks were subject to being deported without a court hearing that has recently changed. That time limit has gone up and people with as many as two year's in the U.S. may be subjected to expedited removal.
Distance From the US Border...In order to be subject to expedited removal who must have been apprehended within 100 miles of a US border. This is a serious issue since the majority of the United States population lives within 100 miles of a US land or coastal border. The total is estimated to be about 200 million people. In fact, some states such as Florida are entirely within this 100-mile area.
Criminal background – ICE has set forth that its priority is to remove illegal aliens who have committed crimes. Individuals who are of good moral character and have not committed a crime are far less likely to be detained.
Prior Deportation...Upon re-entry, an individual who has been deported on a previous occasion (and who has not gotten advanced permission from the government to return) will usually be promptly removed from the country.
Credible Fear...Individuals who might otherwise be subject to expedited removal but who have a credible fear of persecution or torture if returned to their country of origin may find relief before American immigration courts in various forms.
Family ties to US citizens and legal residents –Individuals who were unlawfully present in the US or who have overstayed or otherwise violated their status may be eligible for a green card either directly or through cancellation of removal.
Schedule An Appointment
If the government is seeking to deport you, don't give up. Immigration law is hard to understand and follow - we're experts and we're here for you. We can fight your deportation. Give us a call today so that our attorneys can review your case and provide individualized guidance on how best to proceed with fighting your deportation case.
After all, no one should have to leave their home because they didn't know what steps were necessary or how complicated this process could be!