Is there any hope for those already deported?

January 19, 2017

 

Contrary to popular belief, being ordered removed from the United States or actually being deported is not a death sentence. An immigrant still has different options available to them to stay in the United States, or even return to the US, and obtain legal status after being ordered removed. A competent immigration attorney is able to seek relief for an individual by filing the appropriate applications with the Department of Homeland Security or the Department of State, by filing a motion to reopen with the Immigration Court, or by filing an appeal with the Board of Immigration Appeals.

 

An immigrant that is ordered deported is considered to be inadmissible to the US and unable to adjust their status to a Lawful Permanent Resident (LPR). Under current immigration laws, there are a number of options available to those with deportation orders.  Certain immigrants are able to file an I-212, Application for Permission to Reapply for Admission Into the United States After Deportation or Removal, form to waive the deportation order or to waive being deported. If the application is approved, the deportation order is set aside and the immigrant is allowed to adjust. This application is submitted to the United States Citizenship and Immigration Services agency or the Department of State, depending on where the individual will be issued their green card. Please note that this application does not waive unlawful presence; being in the US illegally without permission.

 

It is up to the discretion of the Department of Homeland Security (DHS) to approve or deny an I-212 application. In adjudicating an application, DHS will weigh favorable or unfavorable factors. It is up the applicant to show that they have close family ties in the US and that their US citizen or LPR relatives or employer would suffer unusual hardship if their application were not approved. The applicant should also show a high likelihood that they will be become an LPR in the near future. To support an application, an applicant should send supporting affidavits, evidence of family ties in the US, employment records, the impact of family separation, and country conditions to which their families would have to relocate if the application is denied.

 

Undocumented immigrants with removal orders or who have been physically deported, have the option of filing a Motion to Reopen with the immigration court. A Motion to Reopen allows the Judge to reopen a removal proceeding so that new evidence can be presented and a new decision can be entered based on the new evidence. A typical case involves an immigrant that was ordered deported but now qualifies for a green card based on a marriage to a US citizen or is eligible for a non-immigrant visa like a U or T visa. A Motion to Reopen can also be based on ineffective assistance by the immigrant’s previous attorney. A Motion should be accompanied with material evidence not available and that could not be discovered or presented at the former hearing. The Petitioner must show that the circumstances arose after the order of removal was entered and it is up to the discretion of the court to grant or deny a Motion to Reopen. Typically, you can only file one Motion to Reopen. The individual also has the option for filing an appeal of the Immigration Judge’s decision with the Board of Immigration Appeals.

 

Where one is seeking to stop Immigration and Customs Enforcement (ICE) from enforcing a removal order they can file a Stay of Deportation with their local DHS office. Where the Stay is approved, the immigrant will not be deported and will be allowed to remain in the US. The local DHS office has the discretion of approving the Stay and issuing an order of supervision and employment authorization. There is a minimum bond amount of $1,500 if the stay is approved.

 

An order of deportation or actually being deported does necessarily have to stop an immigrant from becoming a Lawful Permanent Resident. The individual should explore all of their options. Every case is different therefore consulting an immigration attorney is essential to determine the proper options.

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