Grounds For Removal
Except for U.S. citizens, individuals in the United States, including lawful permanent residents (LPR), may be subject to removal. In 1996, Congress consolidated the formerly separate exclusion and deportation proceedings into one proceeding, removal. With some exceptions, cases pending before April 1, 1997 apply the former exclusion and deportation procedures and rules. Cases on or after that date are subject to the new removal procedures. One may be placed in removal proceedings if subject to either grounds of inadmissibility or deportation.
There are several grounds for removal, including, but not limited to:
- Inadmissibility at the time of entry or at adjustment of status
- failure to maintain status
- cancellation of conditional residence status
- marriage fraud, and
- Certain criminal convictions, including:
- crimes involving moral turpitude
- aggravated felonies which include, among others, murder, rape or sexual abuse of a minor, trafficking in any controlled substance and money laundering
- violent crimes
- drug-related crimes
- domestic violence crimes
- theft or burglary
- child pornography offenses
- prostitution and slavery offenses
- fraud or deceit crimes, such as tax evasion
- alien smuggling
- obstructing justice
- firearm violations; and
- conspiracy or attempt to commit any of the above.
- Falsifying immigration documents or falsely claiming U.S. citizenship; and
- Security and political related violations, such as engaging in terrorist activities, activities that endanger the public or national security, or activities that have potentially serious adverse foreign policy consequences for the United States.
Relief from Removal
If eligible, a foreign national may challenge removal and/or apply for relief from removal. Most of the relief is discretionary, and includes, but is not limited to:
- Voluntary departure;
- Cancellation of removal;
- Section 212(c) relief (certain LPRs with certain criminal convictions prior to April 24, 1996);
- Registry (individuals who have lived in the U.S. since January 1, 1972);
- Adjustment of Status (An individual inadmissible due to a criminal conviction or due to fraud or willful misrepresentation may be eligible for a waiver under INA § 212(h) or INA § 212(i), respectively.);
- Asylum, withholding of deportation or relief under Convention Against Torture Act (CAT); and
The Department of Homeland Security (DHS) may initiate removal proceedings for any foreign born individual subject to grounds of inadmissibility or deportation. Most all foreign nationals are entitled to a removal hearing before an Immigration Judge unless they have waived that right. Individuals subject to expedited removal, however, are an exception. Foreign nationals may be detained pending removal proceedings, although some are eligible for release on their own recognizance, parole or bond.
To begin the removal proceedings, the government files a Notice to Appear (NTA) with the Immigration Court. The NTA lists factual allegations and charges of inadmissibility or deportability. A foreign nation in removal proceedings is entitled to due process. The Immigration Judge must explain the hearing procedures and inform the foreign national of his/her rights. Removal proceedings are considered civil, and not criminal, in nature. The foreign national is afforded the right to counsel at his/her own expense and the right to present testimony, witnesses and evidence to contest removal and apply for relief.
If the Immigration Judge orders removal, the foreign national may appeal to the Board of Immigration Appeals (BIA), and thereafter, with some limitations, to the federal courts. Once removed under an order, the foreign national will be inadmissible for a statutorily required number of years, unless granted a waiver or special permission to reenter the United States.