An alien who has been ordered deported or removed from the United States and subsequently intends to apply for adjustment of status must be prepared to present proof, to the satisfaction of the Immigration Service, that the alien has remained outside the United States for a period of 5 years following a first removal or 20 years in the case of a subsequent removal. An alien convicted of an aggravated felony as defined by the Immigration Act must remain outside of the U.S. permanently.
The time required outside of the United States after an order of deportation varies according to the underlying reason for deportation and the requisite time begins to accrue at the moment of departure. Compliance with the time requirement outside of the U.S. may entitle the alien to apply for reentry into the United States.
An alien who fails to present sufficient proof of the requisite time outside of the United States must apply for permission from the United States Attorney General to reenter after a deportation. An applicant who requires such permission must file an application with supporting evidence with the District Director who has jurisdiction over the place where the alien resides.
In a typical situation an alien will seek permission to reenter the United States from their native country as they attempt to consular process. However, many aliens ordered deported have remained in the United States or have reentered illegally after deportation. Permission may also be available for them.
Ordered Deported And Remain In U.S.
An alien ordered deported or removed and who subsequently remains in the U.S. can apply for permission to change status in the United States. This is made clear by referring to the Immigration and Nationality Act.
The Act provides: “If the applicant is physically present in the U.S. but is ineligible to apply for Adjustment of Status (because of a prior order of deport) he or she must file an application for permission with the District Director having jurisdiction over his or her place of residence.”
The Immigration Service requires an alien to follow specific filing requirements for permission to apply for lawful permanent residency. These requirements vary according to such items as the year of deportation, the reason for deportation, and the underlying visa. In addition, different set of rules apply for those aliens who qualify for legalization under the recently enacted LIFE Act.
Where an alien remains in the United States after an order of deportation and subsequently through marriage or employment, a visa becomes immediately available to adjust his or her status, the road to lawful permanent residency is filled with complexities that require an experienced immigration lawyer. Aliens not familiar with these requirements may put his or her freedom in jeopardy.
Illegal Entry After Deportation
An alien who has been ordered deported and subsequently leaves the United States has been deported. This is true even if the person paid for his own passage and made his own arrangements to leave. It is, of course, equally true, if the alien was taken into custody and the physical removal was arranged and paid for by the government.
Under either circumstance, if the person wishes to return, he must obtain permission to re-enter. If the alien goes through a consulate to get a visa, the permission and the visa are applied for at the same time.
If the alien re-enters the United States without a visa, he has committed a crime by re-entering the United States after deportation without permission. In addition, if he was in the United States unlawfully (without a visa) for 6 months or more than one year, he will be subject to three-year and ten-year bars from re-entering the country. He will need to apply for a waiver from these bars as well as for permission to waive the bar to obtain an immigrant visa. Neither the waiver nor the permission to re-enter is a defense to the criminal charge, if the government decides to file one.
If the alien was both deported and re-entered the country prior to September 30, 1996, when he is taken into custody, the INS must file new charges and bring him before an Immigration Judge. (This is only true in the Ninth Circuit as a result of Castro-Cortez v. INS). Once in court, the Immigration Judge can issue nunc pro tunc permission to re-enter. Nunc pro tunc means that the order goes back to before the alien re-entered the country. This relief is only available if the order would resolve all the grounds of deportability or inadmissibility or if the alien could receive adjustment of status at the same time.
If the alien was deported or re-entered after September 30, 1996, the INS can reinstate the order and enforce the deportation without going back to Immigration Court. The alien is deported under the prior order. That order is not subject to being reviewed. The court case cannot be re-opened and the alien cannot apply for relief in the United States. U.S. District Court has no jurisdiction to consider a challenge to an INS decision to reinstate the prior order. The alien can only apply for relief through the consulate.
Aliens who have an existing deportation order should be aware that if they appear at INS for an interview, they are likely to be taken into custody. They should seek legal advice from experienced and responsible immigration lawyers to determine the best way to deal with the problem and obtain the relief they want.