| Any noncitizen of the United States is subject to expulsion from the country for any reason specified in the Immigration and Nationality Act ("the Act"). Thus, permanent resident aliens as well as temporary visa holders may be deported. Many of the grounds of deportation (some of which do not even entail violation of the criminal law) carry no limitations regarding permanent residents who have spent many years, and in some cases, their whole adult lives in the United States. The hardship caused by the scope of the deportation provisions of the Act is only too apparent, for these provisions have the potential to separate families, uproot individuals and return them to a country that for all practical purposes is completely foreign to them. Unfortunately, most of the grounds for deportation are mandatory under the Act; they cannot be waived at the discretion of Immigration and Customs Enforcement (formerly "INS").
The Act confers broad powers on immigration officers to search for, apprehend, arrest, search, interrogate, and initiate deportation proceedings against aliens when the government has "reasonable suspicion" that they are illegally present in the United States. Removal proceedings are initiated by the filing of the "Notice to Appear" ('NTA"). The Act provides the alien with "a reasonable opportunity to present evidence...and to cross examine witnesses." There is little right to discovery in a deportation proceeding. At the hearing, the government has the burden of proving alienage and deportability. Alienage refers to any person who is not a citizen or national of the United States. The government must first prove alienage because this is a jurisdictional matter and only aliens can have removal hearings.
If alienage is demonstrated by clear, convincing, and unequivocal evidence, the matter of deportability then becomes an issue. Deportability is the finding that a person has violated an immigration law specified in the Act. Only after the ICE proves alienage and deportability by clear, convincing and unequivocal evidence is it appropriate to apply for discretionary forms of relief.
Relief from Deportation/Removal Proceedings:
This section presents the most generally sought after remedies available to the alien; it is not an exhaustive list of available relief.
Voluntary Departure
Those who receive and accept a grant of voluntary departure leaves the United States "voluntarily"; in exchange, no formal removal order issues. This is important because aliens who are formally ordered removed from the United States are ineligible to return to the United States for a significant period of time, absent US permission to reapply for admission sooner. Aliens who accept voluntary departure, and pay their own way, are not subject to the bar.
Cancellation of Removal
This form of relief literally "cancels" the removal of an alien from the United States. In other words, the alien concedes the charge, or charges, of removability and essentially asks that her immigration violations be overlooked and that she be permitted to stay in the United States. When such a request is made, the court is asked to balance the alien's equities in the United States against her immigration violations as well as any relevant criminal violations. Not everyone qualifies for this form of relief.
Political Asylum/ Withholding of Removal
An asylee is a person who meets the "well founded fear" definition of a refugee under the Act, but is physically present in the United States, or is at a land border or port of entry of the United States, at the time she is seeking refugee status in the United States. To document a "well founded fear" of persecution, an asylum seeker must have a reasonable possibility that she will be persecuted if returned to her home country. The feared persecution must be based on "account of race, religion, nationality, membership in a particular social group, or political opinion." The decision to grant asylum is discretionary and not mandatory.
In contrast, withholding of removal provides for an absolute prohibition against the removal of a person. Withholding places an absolute prohibition against the return of someone to the frontiers or territory of a country where her "life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group or political opinion."
As with cancellation of removal, not everyone qualifies for political asylum or withholding of removal.
Convention Against Torture
Under international law, and United States law, a person may not be returned to a country where she will be tortured. The act of torture must be done "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
An alien may petition for protection pursuant to the convention as well as for withholding of removal (should she not be eligible for asylum). Should she not be eligible for withholding of removal, she then can petition for deferral of removal. Like withholding of removal, deferral of removal is only limited to the country where the person would face torture. Unlike withholding of removal, deferral of removal does not prevent ICE from continuing to detain the person during the deferral period. The grant of deferral can be terminated if it is determined that it is not likely the alien would be tortured in the country to which removal has been deferred.
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