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Although the issuance of visas is partly the responsibility of US embassies and consulates overseas, deportation is an internal matter because it concerns non-US citizens who are present in the United States. Accordingly, the initiation of deportation proceedings is handled by the Department of Homeland Security, primarily through its subdivision Immigration and Customs Enforcement (ICE). Appeals to the US federal court system are sometimes available.
Removal cases are adjudicated inside a system controlled by the Department of Justice. Read why America’s immigration courts are not independent.
Removal-defense strategy increasingly requires tracking federal challenges to agency policy. See the Dorcas v. USCIS appeal and the ruling that invalidated a USCIS benefits freeze.
The scale of current removal policy cannot be understood without the funding behind it. Our analysis of the $70 billion immigration-enforcement package explains how the money could reshape detention, arrests, and deportation nationwide.
Deportation cases often turn on how much deference a court gives an immigration agency’s interpretation of federal law. Our analysis of Loper Bright and immigration law explains why lawyers should now preserve statutory arguments for meaningful judicial review.
In the most serious cases, allegations involving fraud or misrepresentation may extend beyond removal and implicate the government’s 2026 denaturalization initiative.
Two practical issues often arise alongside removal proceedings: whether a repeat reopening request is barred under Matter of M-M-L-J, and whether a person’s circumstances make travel inside the United States unusually risky.
Possible Grounds for Deportation
Space limitations prevent listing all of the possible grounds for deporting someone. A few of them are listed below:
- Committing certain crimes;
- Entering the US illegally;
- Overstaying your visa;
- Marriage fraud; and
- Voting in a US election by claiming to be a US citizen.
How You Might Come to the Attention of Immigration Authorities
Millions of immigrants live in the US, and a significant percentage of them are subject to deportation. Following are a few of the main ways that ICE might become aware of your immigration status in a manner that might prompt them to institute deportation proceedings against you:
- Raiding your place of employment in search of undocumented immigrants and immigrants lacking the right to work in the US;
- Discovering an irregularity in your passport or other documents upon your arrival in the US (at the airport, for example);
- Checking your immigration status if you are arrested (which could get you into immigration trouble even if you are not guilty of the offense you were arrested for); or
- Denying your application for some immigration benefit (asylum, permanent residence, etc.), if the denial means you no longer have the legal right to remain in the US.
Expedited Removal
In expedited removal, you will never even get out of the airport before you are sent home, and you will not receive a hearing before an immigration judge. The justification for this practice is that you have not formally entered the US (you have not yet passed through immigration inspection).
At the border, you do not have the same rights as people who formally entered the US as a result of passing through immigration inspection (by, for example, presenting a passport to an immigration officer and being waved through). Expedited removal might occur if, for example, you present a fake passport to the immigration examiner, or fly to the US without a valid visa. The number of expedited removals has increased drastically over the past few years.
The Notice to Appear
The first step in a deportation proceeding, excluding expedited removal, is to issue you a Notice to Appear. This document must inform you that:
- Proceedings are underway to deport you;
- A statement of the grounds (reasons) for your deportation;
- A statement that you have the right to be represented by a lawyer at your own expense; and
- The adverse consequences of failing to appear at any scheduled immigration hearing
Your First Hearing
You will be notified of the place, date and time of your first deportation hearing. Although you could definitely benefit from bringing an immigration lawyer with you, don’t skip the hearing even if you don’t have a lawyer. If you skip it, the judge will automatically order your deportation, and you will not be allowed to return to the US for at least 10 years.
Voluntary Removal
If you arrive at your first hearing with no defense to removal, it is probably in your best interest to ask the immigration judge to grant you Voluntary Removal, under which you agree to leave the US on your own by a certain date.
If the judge grants your request for Voluntary Removal, and you leave the US by the assigned date, the entire affair will not count as a deportation, and you will not be subject to a bar to re-entry on that basis. You might, however, face a re-entry bar for some other reason, such as a prior deportation or unlawful presence in the US.
If You Have a Defense
If you have a defense against deportation, you should raise it before the immigration judge at your first hearing. A myriad of defenses might be available, depending on your specific circumstances.
Following are a few examples:
- Immigration authorities made a mistake, either in determining the facts relevant to your case, or in applying the law to your case;
- You are married to a US citizen (this will not always be effective even if you can prove it is true, but sometimes it works); or
- You have grounds for claiming asylum.
- Once you raise a plausible defense, the immigration judge will schedule a second hearing to determine whether your defense is valid.
The Second Hearing
At the second hearing, you will pursue whatever defense to deportation that you offered at the first hearing (if you offered no defense, there will be no second hearing). You will be entitled to testify in your own defense and present evidence to the court, and you can be cross-examined by a USCIS lawyer seeking your removal.
This is a situation where an experienced immigration lawyer can really help you. You are entitled to bring your lawyer with you to the hearing to assist in your defense.
Appeals
Under certain circumstances you are entitled to appeal an adverse decision; however, a discussion of the appeals process is beyond the scope of this article.
