How the Deportation Legal Process Works

Every year, a number of people face deportation (removal) proceedings before immigration judges. The Department of Homeland Security cannot typically deport an individual without first giving that individual a chance to go before an immigration judge to present his or her case.

The United States Citizenship and Immigration Services (USCIS) handles deportations and removals as part of the Department of Homeland Security (DHS). As part of the process, USCIS will send the individual in question a Notice to Appear, which will contain details of why the proceeding has been initiated. The notice will provide the date of the first hearing. USCIS is also required to provide a copy of the notice to the federal immigration court. The individual facing the removal proceeding has a right to be represented by an immigration attorney.

Reasons for Removal

There are a number of reasons the government may institute removal proceedings against an individual, including when:

• The individual may have entered the United States legally with a visa but overstayed to the point that he or she is now out of status;
• The individual may have entered the United States without a visa or without being checked by an immigration officer;
• The individual may have a green card but has a criminal conviction or is in serious trouble with the law; or
• The individual may have filed an immigration application with the USCIS to stay in the U.S. but was denied.

The initial hearing is largely procedural. The individual has a chance to appear in court and ask for more time if he or she has not yet obtained an attorney. At this point, the relevant immigration officials will explain the deportation process and inform the individual of his or her rights. At the end of this meeting, an evidentiary hearing will be set for a specific date when the individual can challenge his or her deportation.

At the subsequent evidentiary hearing, a federal immigration judge will hear the evidence against the individual. Deportation proceedings can be a lengthy and cumbersome process. The government has the burden of proof to establish that the individual is removable from the United States by clear and convincing evidence. The standard of clear and convincing evidence requires the government to prove that its version is substantially more likely true than not. The individual will have an opportunity to defend himself or herself through evidence, witnesses, or relevant testimony. This is the most important hearing because this is when the judge will decide whether you will be deported or not.

If the government meets its burden of proof, and the judge rules against the individual facing the proceeding, that individual may appeal or have an opportunity to apply for various forms of relief from removal. Some examples of relief include adjustment of status, waivers of inadmissibility and removability, cancellation of removal, asylum, withholding of removal, legalization, and registry.

Appealing Removal Orders

An individual facing deportation can appeal an immigration judge’s ruling. An appeal must be filed within 30 days from the date of the decision with the Board of Immigration Appeals (BIA). If the BIA makes a decision that is unfavorable, the individual can further appeal it to the U.S. Court of Appeals.

An individual may also resist deportation or removal proceedings under the deferred action (DACA) program, which applies to persons who came to the United States as children. The program applies to those currently residing in the U.S. who meet a number of criteria, including having entered the U.S. prior to the age of 16, having lived in the U.S. continuously since June 15, 2007, and having not been convicted of a crime involving moral turpitude. In addition, the individual must be currently enrolled in an educational institution, have completed high school or its equivalent, or have served honorably in the military.

Last reviewed October 2024