Deportation Defense under 1996 Immigration Laws


Since the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), both in 1996, deportations of foreigners have increased exponentially. According to the INS press release (dated November 12, 1999), 176,990 aliens were removed in the fiscal year 1999, up 3% from fiscal year 1998. This figure includes only those removed by final order of an immigration judge or an administrative officer. It does not include the 72,000 in INS custody who decided to voluntarily depart from the US, nor the approximately 1.5 million voluntary returns at the US borders in 1999.

Who gets placed in deportation (now called removal) proceedings?

Surely only hardened criminals and dangerous felons will have to worry about being deported, right? Wrong. Because of the harsh provisions of the 1996 laws, even relatively small misdemeanors can lead to one's removal from the United States, no matter how long he or she has been a lawful permanent resident. Depending on the wording of particular statues violated, shoplifting (petty theft), drunk driving, "joy-riding," etc. can all be a basis for a removal proceeding. Nor does it matter how long ago the act took place; you could have shoplifted 20 years ago as a youthful prank. For example: a certain Michigan business owner was being deported for a teenage prank committed in 1968. (Source: AILA, Detroit News) The law also allows for the deportation of aggravated felons. The problem is that the term "aggravated felony" is defined differently and much more broadly under immigration law than under criminal law. Worse, what may not have been an aggravated felony or even a deportable act under immigration laws at the time of the conviction, may be so now. If the INS succeeds in proving that an alien is an "aggravated felon" under immigration laws, he or she is left with extremely limited options to avoid deportation.

I have no criminal record, so will I still have to worry about being deported?

Any violation of your status in the US can potentially result in your being placed in removal proceedings. These violations generally include staying beyond the period authorized, failing to abide by the conditions of your status, or entering without proper documents. Consider the case of the immigrant from Poland who was placed in removal proceedings for overstaying his visa while caring for his ailing mother. (Source: AILA, Associated Press). Or how about a world-renowned jazz pianist, being deported for illegally entering the country at the age of 11. (Source: AILA, Los Angeles Times); Or a Hungarian student, barred from the country for five years under expedited removal process, because INS says he overstayed a visa by three months five years previously. (Source: AILA, New York Times). An immigration violation is not dependent on how long the violation took place (e.g., one day of working without authorization, or of overstay) or the age of the alien (e.g., a baby brought in illegally by his parents, is still an immigration violator).

But I am married to (or am a parent of) a US citizen.

Being married to a US citizen, or having US born children, does not automatically guarantee that INS will not try to remove you from the US. There is even a presumption that the marriage is a sham, entered into for purposes of obtaining the "green card," if it takes place after the removal proceedings have commenced.

How do I avoid being deportable?

An immigration practicioner can advise you of the consequences of your intended action (divorce, change of employers, concurrent employment, etc.), or how to achieve your goal without negatively affecting your immigration status. An ounce of prevention is definitely worth a pound of cure in this case.

What should I do if the INS wan ts to deport me?

Get help. The stakes involved in a removal hearing are very high, involving the risk of separation from your family and your community, of loss of your job, and of loss of your way of life. While you have every right to represent yourself before the INS, you will benefit greatly from the guidance of an immigration professional experienced in deportation defense.