Many people have filed for legal permanent residency (green card) status only to find that they have a past deportation, which will result in immediate removal from the United States. Most people do not realize that filing for asylum and later withdrawing or ignoring their case will result in the Immigration Service (“USCIS”) commencing removal proceedings and obtain a deportation order. In addition, many do not realize that departure from the U.S. after deportation and illegal re-entry does not necessarily entitle them to new proceedings before the immigration court.

The fact that one had a prior deportation order will not stop the USCIS from taking their money to file an adjustment of status application. Nor will it stop the USCIS from taking the money for a work authorization and fingerprint applications. Again and again we see cases where the Green Card applications have been filed, the USCIS grants work authorization, but when it comes time to go to the adjustment of status interview, USCIS immediately arrests the alien and “reinstates” the prior deportation order. This could come after any period living in the U.S. even with a work authorization.

Many immigration consultants and even some attorneys urged clients to file asylum applications merely to get work authorization, without informing them of the consequences of being deported.. If you or a loved one has any history of past immigration applications with the USCIS it is essential that you do a preliminary investigation and determine whether there is an outstanding deportation order. This can be done by checking the records of the EOIR or immigration courts.

The recent decisions from the 8th Circuit now suggests that despite the presence of a prior deportation order, immigrants may be entitled to appear before the immigration court where different forms of relief may be obtained from an immigration judge. The court held that where an immigrant leaves and re-enters the country prior to the enactment of the re-instatement statute of April 1, 1997 he had a reasonable expectation that he could file a waiver with his application for legal permanent residency or seek adjustment of status as a defense in a deportation proceeding.

The court held that in re-instating the prior deport order and removing him, the immigrant did not have an opportunity to seek a waiver under 8 C.F.R. 212.2 as well as separate relief under 8 U.S.C. 1255a(d)(2)(B)(i) (waiver of a prior deportation for humanitarian purposes, family unity or the public interest). This case is of intense interest to the immigration community, and it appears to extend a position already taken in the Ninth Circuit under Castro-Cortez that prevents re-instatement of deportation orders where the individual exits and returns to the United States prior to April 1, 1997.

When considering filing an application for adjustment of status or having been denied this benefit due to a prior deport order it is important to review the complete INS file so that one’s options can be ascertained. I strongly suggest finding a knowledgeable and experienced immigration attorney when confronting these issues.