Immigration Removal Proceedings & Criminal Law Concerns

Deportation, known as “removal” under federal immigration law, is the process of removing a person who is not a U.S. citizen from the country, often by transporting him or her to his or her country of origin. This typically occurs after an administrative procedure that is somewhat similar to a criminal prosecution. The government must assert grounds for removal and has the burden of proof to establish that a person, known as a respondent rather than a defendant, should be deported. Removal is still considered to be a civil legal procedure, so while respondents have some constitutional protections, they do not have as many as they might in a criminal case.

Removal Procedure

Other than removals that occur after a person is apprehended by the Border Patrol at or near the U.S. border, deportation requires a legal procedure with some guarantee of due process. Immigration and Customs Enforcement (ICE), which is part of the Department of Homeland Security, investigates people who are allegedly in the U.S. unlawfully and brings removal actions against them. The immigration court system is part of the Executive Office for Immigration Review, which in turn is part of the Department of Justice. Immigration judges (IJs) serve a role that is similar to administrative law judges in other government agencies.

When ICE initiates a removal case, it must identify specific grounds for removal, citing statutory authority. A respondent may concede the charges or contest them, and may raise various defenses to removal. If an IJ orders a respondent removed, he or she may appeal to the Board of Immigration Appeals (BIA). An appeal from a BIA ruling would go to the federal Circuit Court of Appeals that has jurisdiction over the respondent.

Inadmissibility and Deportability

The government has the burden of proving that a person is subject to removal from the United States. Federal immigration law includes numerous grounds for both inadmissibility, meaning that a person should not have been admitted to the country, and deportability, meaning that the person should lose the legal right to be here.

Most grounds for inadmissibility involve factors that would lead to denial of an application for a visa, such as certain types of criminal convictions, medical exclusions, and concerns related to national security. A person is also deemed inadmissible if he or she is present in the country “without admission or parole,” which often means that he or she entered the country without a visa or other official permission, or came in with a visa that has since expired.

A person who is considered inadmissible is also deportable, but the category of “deportable” individuals is much broader than that. A person who has legal status in the U.S., such as through a nonimmigrant visa or a green card, may become deportable by violating a condition of his or her immigration status, or if he or she is convicted of certain criminal offenses, including “crimes of moral turpitude” or “aggravated felonies.”

Searches and Seizures

The Fourth Amendment protects criminal defendants by requiring courts to rule that evidence is inadmissible at trial if it was obtained in violation of the warrant requirement or police searches. The rule, known as the exclusionary rule, does not apply in a deportation trial, according to the Supreme Court, since it is a civil proceeding. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). The BIA has held, however, that evidence obtained through a particularly “egregious” search could be inadmissible under the Fifth Amendment’s guarantee of due process. Matter of Toro, 17 I. & N. Dec. 340 (BIA 1980).

Right to an Attorney

The Supreme Court has acknowledged that deportation has become closely linked to criminal law. See Padilla v. Kentucky, 556 U.S. 356 (2010). Still, one of the Sixth Amendment’s most important guarantees, the right to an attorney of one’s choosing, is not entirely available in deportation cases. Federal immigration law provides a statutory right to an attorney in a removal proceeding, but specifies that it may not be at the government’s expense.

Last reviewed October 2024