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One of the most complicated areas of immigration law relates to the deportation process of a legal resident or someone unlawfully present in the U.S. Since the actual deportation process can relate to an almost infinite number of factors, an article about potential deportation situations does not provide much value to readers. What is infinitely more valuable is an article about the consequences following a deportation whether an actual removal from the U.S. is performed or not.
There are two possible questions for people in this situation: what options are there if I leave the U.S. and what options do I have if I do not? Usually if an individual is required to leave the country, their next concern is how they can legally get back since most people either have families still living in the U.S. or some sort of property interest to attend to.
If someone is deported and actually leaves the U.S., there is always the question about how long must they must remain outside before being able to return. This depends on the immigration judge’s final order, but usually the period of time is anywhere from 5- 10 years. In most cases, an immigrant can wait out the period of time outside the U.S. without needing to do anything or file anything. The law is designed to “clear the slate” once the individual spends the required time outside the country. I have had many clients “pay” their penalty time outside the U.S. and immediately be able to return with a green card.
There are, however, options for people who cannot or do not want to be gone for the required 10 years. Usually this relates to the family members who are left behind that urgently need the support of the deported individual. There are a number of different waivers that can be filed to convince the government of the extreme need or hardship for the deported individual to be able to come back to take care of their family. I have found that legitimate and serious health concerns of a U.S. citizen spouse, child or parent is often enough to get this waiver approved. The argument generally is that the deported family member is critical for their care, treatment or support. Basically, without that person being around, serious risk will exist for the U.S. citizen family member.
So, what if the deported person does not actually leave the U.S.? What options do they have to fix their situation? Most often, if a judge orders the deportation of a person, they are also granted the right to file an appeal to challenge the decision. An appeal in immigration court is a right, but only applies to decisions that are based either on the improper application of the law or based on a clearly erroneous conclusion by the judge. Most people are confused by the appeal process because they have watched too much TV. Despite popular belief, an appeal is not permitted simply because the person does not like the decision. If that were enough, virtually every court decision would be appealed since there is always one winner and one loser and, therefore, every case has someone who dislikes the decision. If this were possible, the entire immigration court process would come to a grinding halt in order to process thousands upon thousands of appeals every year.
If an appeal is not an option for someone who recently was ordered removed from the U.S., there are other processes that can help delay their removal from the country that may end up fixing their situation. The process to delay the execution of a deportation order happens when an individual requests a “stay” of the proceedings to provide time for the adjudication of a prior request from immigration or a special request from the Justice Department. An example of a potential stay request is for someone with a pending U Visa case.
The U visa process is available for people who have been victimized by someone inside the U.S. and who have shown that the crime caused them some sort of measurable harm. Since it can take years for immigration to process and make a decision on a U visa, clients often need to make the special stay request to stop being removed from the U.S. to give them time to make their decision. Although it is possible for a recent crime to be committed against the individual being removed and for them to make a U visa request, it is less likely that a stay of the deportation will be granted for a recent request. Still, it is worth trying if the individual has a legitimate case for a covered U visa claim.
Due to the seriousness of the deportation process and the complexity of fighting a removal or making a waiver request, it is highly recommended that you consult with an experienced immigration attorney before trying anything. Please contact our office to schedule a consultation if you have any immigration matter you need assistance with. You can do this either by calling our office at 616-805-3435 or by using the following link to schedule an appointment online: https://marvinlawoffice.com/schedule-a-consultation/