What to Do If You Are Deported
The Trump administration has launched a tumultuous campaign to detain and deport immigrants living in the United States, regardless of documentation status. Over 100,000 individuals have been apprehended in a blitz of raids and arrests by federal immigration agents. Some of those detained were swiftly deported with little or no notice and without immigration hearings or other due process proceedings. Given the chaotic and extrajudicial nature of the recent crackdown and the potential to be misidentified, mistakenly detained, or rapidly deported without an opportunity to appeal, it is important that you know what to do if you find yourself in the custody of federal immigration enforcement.
Arrest and Detention
Do not attempt to evade or resist arrest. You will likely be taken to one of over 200 ICE detention centers for processing. Detention is not intended to be punitive, though conditions in ICE detention centers are frequently reported to be poor and negligent. If you are a U.S. citizen, inform the immigration agents right away. If you are pregnant, ill, disabled, or suffer from a chronic medical condition or take medication, alert immigration agents and detention center staff immediately of your condition. Notify agents if you are the parent or caretaker of a child or disabled adult. Otherwise, remain silent and request to speak with an attorney.
Anyone who interacts with the American legal system is entitled to certain rights. Knowing these rights and the resources available to you is critical for navigating the immigration detention and deportation system. If you are detained or arrested by law enforcement, you have the right to remain silent. Do not answer any questions without consulting a lawyer. Do not provide false information. Say “I wish to remain silent. I want to speak with an attorney.” You have a right to seek legal support, though law enforcement is not obligated to provide non-citizens with a lawyer. Contact a lawyer immediately. You may request a list of free or low-cost lawyers. You have a right to make necessary phone calls. If you are told that you may not contact a lawyer, call the American Bar Association Legal Orientation Program by dialing 2150# on the facility’s phone. The ABA can connect you with legal support and information and provides English-Spanish translation services. You also have the right to be visited by lawyers, consulate officials, and family members while detained. Do not answer any questions or sign any documents unless your lawyer instructs you to do so. If you cannot understand what is being said to you or the documents presented to you, you may request translation.
After ICE arrests a person without a warrant inside the United States, the agency must make a custody determination and decide whether to place the individual in removal proceedings within 48 hours. Detainees without final removal orders and serious criminal records are generally eligible for release, either on their own recognizance, on parole or bond, or under an Order of Supervision. Bond for release from immigration detention is set at a minimum of $1,500. You may appeal the assessment of your eligibility for release or the conditions of your release—such as bond amount—through a custody redetermination hearing in immigration court. If you are released from ICE detention, you will be expected to make all subsequent court appearances and may be required to check in with immigration agents from time to time. ICE frequently moves detainees between detention facilities—sometimes located hundreds of miles apart or in isolated rural areas—in an effort to make contact between them and their lawyers and families more difficult and to transfer detainees into the jurisdictions of courts that may be more sympathetic to immigration enforcement. If you are moved between ICE facilities, notify your lawyer immediately and provide your new location and contact information. ICE is required to inform both the detainee and their attorney about transfers, ideally within 24 hours. You can be located by your A-number using the ICE Online Detainee Locator System.
You might consider informing immigration agents of your status as a legal permanent resident, asylee, refugee, or holder of temporary protected status, or visa holder. If you do not have valid immigration status but have a pending application for asylum or temporary protection, an open immigration court case, or an immigration appeal, notify the agents and present documentation. If you are afraid to return to your home country out of fear for your safety or persecution, say so loudly and clearly to every agent you encounter. Expressing credible fear gives you the right to plead before a judge to withhold your deportation or apply for asylum. Most detainees who have resided in the United States for at least two years are entitled to an immigration hearing and are protected from expedited deportation, regardless of their immigration status. Present proof of your residence in the United States such as a rental contract, school records, or mail containing your address and a post-date. Non-citizens who are not legal permanent residents may not receive a hearing if they have an outstanding order for their removal or have previously been deported from the United States. Undocumented individuals who have not lived in the United States for at least two years may be subject to expedited removal and denied an immigration hearing.
Defense
You may pursue a number of defensive strategies to avoid deportation.
Stay of Removal
A stay of removal is a temporary pause in the deportation process. It allows someone who has been ordered deported to remain in the U.S. for a specified period while they work on resolving their case through appeal or other legal remedies. Stays of removal may be issued through judicial proceedings in the EOIR, the Board of Immigration Appeals, an immigration court, an appellate court, or a circuit court, or by the Department of Homeland Security. Deportees may file a motion for a stay of removal in the courts or apply for an administrative stay of removal by submitting Form I-246 to DHS directly. A non-citizen with an order of deportation, exclusion, or removal can seek an administrative stay of removal from DHS at any time, even if they have a simultaneous appeal or motion pending in court. DHS officials have discretion to grant or deny administrative stays of removal, though immigration enforcement is obliged to honor judicial stays of removal and temporary restraining orders.
Cancellation of Removal
Non-legal permanent residents may obtain cancellation of removal if they can demonstrate a credible fear for their safety upon return to their home country or the possible hardship that their deportation would cause for their spouses, dependents, or other persons who live in the United States and are supported by the deportee. They also must have lived in the United States for at least 10 years without a criminal record and possess “good moral character”. Those whose removal is canceled will automatically receive a Green Card.
Asylum
Deportees facing removal may file a defensive asylum application (Form I-589) before an immigration judge or the BIA. To obtain defensive asylum status, you must demonstrate a credible fear of being persecuted or tortured if you are deported to another country. Immigration judges presiding over defensive asylum cases hear arguments from both you and your legal counsel and USCIS under adversarial proceedings. The immigration judge will then decide if you are eligible for asylum. If the immigration judge finds you eligible, they will grant asylum. If the immigration judge finds you ineligible for asylum, they will determine whether you qualify for any other forms of relief from removal. Otherwise, they will order you to be removed from the United States. Either party can appeal the immigration judge’s ruling. Asylees are protected from being returned to their home countries, are eligible for authorization to work in the United States, and may apply for a Social Security card, request permission to travel overseas, and petition to bring family members to the United States. They may also be eligible for certain government programs, such as Medicaid or Refugee Medical Assistance.
U-visa
U-visas are set aside for victims of certain crimes who suffered substantial mental or physical harm and are helpful to US law enforcement or government officials in the investigation or prosecution of criminal activity. U-visa recipients and their families are shielded from deportation.
Adjustment of Status
You may seek adjustment of status, a process by which you may apply for legal permanent resident status during removal proceedings. An immigration judge will choose to cancel or withhold your removal order before considering your application for status adjustment and issuing a Green Card. The process of obtaining a defensive adjustment of status is complex and you will likely need an immigration lawyer to help you navigate it.
Deportation
If you are denied relief from deportation and receive a final removal order, you may still move to appeal the immigration court’s decision within 30 days of the order’s issuance. If you lose appeal, your removal order remains and ICE will decide whether or not to proceed with your deportation. You may have an option to voluntarily depart the United States if you meet certain qualifications. Requests for voluntary departures can be made to an immigration judge at any point during your deportation hearing. Choosing to voluntarily depart leaves no deportation order on your immigration record and provides an opportunity for you to apply for visas or pursue other paths to legal entry that would otherwise become unavailable to you after involuntary deportation. Deportees may be held in ICE detention for up to 90 days as they await removal. ICE retains the discretion to detain individuals longer than this if they have certain criminal convictions or are determined to be “a risk to the community or unlikely to comply with the order of removal.” If ICE has not attempted to deport you after these 90 days, a custody review will begin to determine your eligibility for release from detention. Additionally, you may seek a petition of habeas corpus if you have been unreasonably detained for at least six months in ICE custody and without any foreseeable prospect of deportation. Deportees may also be released from ICE custody on probation through the Alternatives to Detention program with certain conditions, such as location tracking, mandatory check-ins with immigration agents, and other supervisory measures. If you are released from ICE detention and issued an Order of Supervision or if you are paroled, you can apply for employment authorization and seek work while you await deportation.
If you have been approved to self-deport through the voluntary departure process, you must make arrangements to leave the United States at your own expense. Otherwise, ICE will return you to your home country or another country that has agreed to admit you. Most ICE deportations are carried out by air aboard chartered planes operated by private contractors or on a standard commercial flight accompanied by an immigration agent. Deportees on chartered flights are usually placed in handcuffs, chains, and other restraints and flown on planes that frequently lack adequate air conditioning and functioning bathrooms.
ICE will return the possessions it might have seized from you during your detention. Deportees are allowed to bring with them “reasonable quantities” of small religious items, reading material and letters, legal documents, up to 10 photos, eyeglasses, dentures, a personal address book, and a wedding ring. Property in ICE custody that cannot be returned with a deportee or sent to them after deportation is considered to be abandoned and is subsequently discarded. Your assets will mostly remain untouched after your deportation. If you anticipate deportation, it is advisable to appoint a trusted individual with power of attorney so that they can manage your affairs in your absence. This person may need to oversee your financial transactions, maintain your property, and handle your legal matters. Ensure that all your bank accounts are accessible from abroad and that their funds can be transferred internationally. You are still expected to make payments on outstanding debts and other obligations after deportation. Find a secure and accessible place to store all your valuable documents, titles, deeds, and other records. Consult with a lawyer to determine the best ways to protect your belongings and manage your affairs after deportation.
Re-entry
Re-entering the United States legally after deportation is a complex process that requires meeting specific eligibility criteria and often obtaining special permission from U.S. immigration authorities. A person who has been deported is generally barred from returning to the U.S. for a period of time—commonly 5, 10, or 20 years, or even permanently, depending on the conditions of their removal.
You can attempt to legally re-enter the United States before the end of your inadmissibility period by applying for a waiver of inadmissibility using Form I-212. Most deportees may submit a Form I-212 application at any time, though it is generally best to wait a few years after your deportation before filing. Those deemed permanently inadmissible may only seek re-entry after obtaining a waiver of inadmissibility. Deportees who are permanently inadmissible after illegally re-entering the United States following an initial deportation can only submit Form I-212 after ten years following their most recent deportation. Certain criminal convictions, suspected involvement in drug trafficking, and false claims made to US citizenship disqualify you from receiving a waiver of inadmissibility. USCIS will consider the following factors when reviewing your Form I-212 application:
The length of time that passed since your removal (more time is favorable)
Your need for employment or other services in the US
The length of time you previously lived in the US
Your criminal record
Evidence of rehabilitation if you have a criminal record
Good moral character
Your family responsibilities
Your inadmissibility under other sections of the law
The hardship your inadmissibility causes to yourself and others
You may also qualify for a waiver of inadmissibility in pursuit of non-immigrant visas for work, study, or travel in the United States, even if you are not eligible for a waiver under Form I-212. Inadmissibility is more leniently waived for non-immigrant visa applicants, though you must prove that you intend to return to your home country to qualify for a non-immigrant visa. Inadmissibility may also be waived on humanitarian grounds under extraordinary circumstances.
The immigration detention and deportation system is complicated. Understanding the removal process and the defensive legal strategies available to you is vital to your safety and protection from deportation and civil rights abuses.