Deportation basics

Who makes up the immigration system in the country?

The Department of Homeland Security (DHS) is an agency that reports to the President. It was created in 2003 by President George W. Bush II as part of the “War on Terror” and replaced the now dissolved Immigration and Naturalization Service (INS). DHS is divided into three separate parts:

1. U.S. Immigration and Customs Enforcement (ICE) can enforce immigration laws throughout the USA. ICE is the policing arm of DHS. ICE can…

  • Detain people and start deportation proceedings against them
  • Deport people who do not have the right to see an Immigration Judge
  • Deport people who have been ordered deported

2. U.S. Customs and Border Protection (CBP) can enforce immigration laws within 100 miles of any land or sea border. CBP can…

  • Detain people
  • Deport people who do not have a right to see an immigration judge
  • Send people’s information to ICE to start a deportation proceeding

3. U.S. Citizenship and Immigration Services (USCIS) processes applications for immigration benefits.

  • If USCIS receives an application from someone who can be deported they can send the person’s information to ICE to start a deportation proceeding.

Who can these agencies try to deport?

Anyone who is “removable” under the Immigration and Nationality Act (INA) – the federal immigration laws. This includes:

  • Undocumented people, including both  individuals who entered unlawfully over a border or on a boat and do not have lawful status and individuals who entered lawfully on a visa and overstayed the time the border official allowed them to stay in the US or violated the terms of their visa in another way
  • Documented non-citizens, including lawful permanent residents or green card holders who have been convicted of certain crimes, committed certain types of fraud, or violated the terms of their status

Citizens CANNOT be deported. However, if the government finds that someone obtained citizenship through fraud, they can try to take away their United States citizenship.

What’s the difference between being deportable and being a priority for deportation?

Someone is “deportable” if immigration can deport them under the law.

Since immigration does not have the resources to deport all deportable people, sometimes they focus on certain people. Under Trump, almost everyone is a priority, but especially people who have had contact with the criminal legal system.

To recap, only certain convictions make documented noncitizens (such as green card holders) deportable, but for an undocumented person, an arrest, even if the charges are still pending or all charges are dropped, might be enough to put them at risk.

It is important to note that we should be skeptical when Trump says that he is going to deport “criminals.” We know that President Obama used this tactic to divide us between the “good immigrants” and the “bad immigrants,” but we also know that people with criminal convictions are valued members of our families and communities. We further understand that we are all “criminals” in Trump’s eyes, that the police criminalize Black and Brown people based on the color of their skin, that deportation is not a just response to a criminal conviction, and that deportations do not make our families and communities safer.

How does ICE find people?

  • Fingerprints taken by local or state police after arrest
  • Filing an application with USCIS
  • Travel (re-entering the U.S.)

What happens if someone is arrested by CBP/ICE?

In NYC, ICE typically comes to people’s homes early in the morning. Sometimes they try to come in. Other times they wait outside of the home. They have also made many arrests near, or in, criminal courts.

Who can be deported without ever seeing an Immigration Judge?

  • People who already have a deportation order because…
    • An Immigration Judge ordered them deported and they either did not appeal or they lost their appeal. If someone did not go to immigration court when they were supposed to, they probably were ordered deported in their absence
    • They were deported at the border in the past
  • Undocumented people with certain criminal convictions called “aggravated felonies.”
  • Undocumented people who have been in the U.S. for less than 2 weeks and are arrested within 100 miles of the border. This process is called “expedited removal.” Trump wants to expand it to include undocumented people who cannot prove that they have been in the U.S. for at least two years—it would not matter whether they were arrested near the border.

These people can still ask for protection if they fear persecution/torture in their country. If someone expresses this fear, immigration is supposed to press pause on the deportation and give them an interview with an asylum officer. What happens from that point on will depend on the outcome of the interview.*

What happens to the people who have a right to see an Immigration Judge?

  • ICE will bring charges against them, and start deportation proceedings, which can last for months or even years.
  • ICE can choose to detain someone while the deportation proceedings are pending, or release them to continue fighting against their deportation from the outside.

Can people be released while they are fighting their case in court?

Some people may be eligible for bond (money paid to ICE for release) and some people may not. This depends on a number of factors, including how someone entered the country, where they are detained, and whether they have certain types of convictions.

Mandatory detention is the practice of incarcerating immigrants during the entire time their immigration case is ongoing, with no chance at bond. This applies to certain categories of people and has increased along with the growth of mass incarceration generally. About 70% of immigrants who are detained are mandatorily detained.

If eligible for bond, a person may be able to ask for a bond hearing in front of an Immigration Judge within a few weeks, whereas others may have to wait 5 to 6 months to make the request.

If the judge grants bond, a specific amount of money will be set. Here’s how to put up a bond.

What happens during deportation proceedings?

Immigration Judges are employees of the Department of Justice—so they report to the Attorney General and President.

ICE will be represented by an attorney, but the federal government does not give lawyers to immigrants who cannot afford them.

Some people who are detained and have immigration court in New York City will qualify for a free lawyer through the New York Immigrant Family Unity Project (NYIFUP).

The ICE attorney first needs to prove that the immigrant is deportable. This will usually happen during short hearings called “master calendar hearings.”

If the ICE attorney proves their case, then the immigrant has to prove that they qualify for a “defense to deportation.” There are only a small number of defenses under the law and each has its own set of requirements. Many people do not qualify for any defense. If they qualify for a defense, they will present their case at trial, which is called an “individual hearing.”

People who do not want to fight their case, or do not qualify for a defense, might be eligible for voluntary departure rather than a deportation order.

In some cases, voluntary departure can reduce the amount of time someone is not allowed back into the country; however, a person must have a passport and pay for their own flight out of the United States.

If a person wants and qualifies for voluntary departure, they can ask to have their first court hearing sooner.

If an immigration judge denies the immigrant’s defense or request for voluntary departure, or if the immigrant does not come to court or does not leave the US after getting voluntary departure, the immigrant will get a deportation order.

What happens if the Immigration Judge orders the person deported?

The immigrant will have 30 days to appeal to the Board of Immigration Appeals.

If they do not appeal in time, or if the Board of Immigration Appeals agrees with the Immigration Judge, ICE can deport the person.

If the immigrant is outside of detention, sometimes ICE sends a letter telling the immigrant to show up for deportation; but they can also come to someone’s home.

People can ask ICE to let them stay, even though they have a deportation order. In some cases, there are ways to reopen the deportation case so that the immigrant can go back in front of an Immigration Judge. Both of these options are rare.

NOTE: A person who reenters the country without permission, after being ordered deported, can be prosecuted for a felony crime. They also are permanently barred from receiving lawful permanent residency through an employer or a family member.