Did you enter the U.S. without papers? Are you in immigration court proceedings? If so, you are probably worried. Many assume that if you came to the U.S. illegally, and that if you are caught by immigration officials, that you will automatically be deported.
This is simply not true. Immigrants who have crossed into the U.S. illegally may still have a chance to fight their deportation, even when they came without papers (by crossing through the desert or a river) by using someone else’s papers.
Below is an explanation of what to expect if you have been placed in deportation proceedings, and what you can do to stay in the United States.
The immigration court process for illegal entrants
If you entered the United States illegally, you will most likely be charged with something called “inadmissibility,” which is a type of removability that applies to people who have never been formally admitted to the United States.
The government will kick off the deportation process by giving you a charging document called a Notice to Appear. It tells you why the government is trying to deport you from the United States, and when to go to immigration court.
Often the Notice of Appear does not contain details on when and where to go for court. If it does not, you should expect to receive a notice of hearing in the mail. Sometimes it can take weeks, months, and even years to get your hearing notice. (But there are other ways to check your immigration court hearing date, without waiting for a notice in the mail.) In the meantime, you are still obligated to let the court know if your mailing address changes. This is very important, because if you miss a hearing, you will probably get a deportation order.
When you finally get an immigration court hearing, you will need to respond to the government’s allegations, one of which may be that you entered the U.S. without inspection.
Did you actually enter the U.S. without inspection?
If the government is arguing that you entered the U.S. without inspection, you need to make sure that is correct.
Many assume that they entered the U.S. without inspection without knowing what that means.
For example, did you pass through an official border crossing on your way into the U.S.? Were you sitting in the back of a car, and were you waved into the U.S. by a border official? If so, you were actually inspected and admitted to the United States, even if you did not present any entry documents — and you may be treated more like a visa overstay in immigration court.
Or did you come into the U.S. using someone else’s green card or visa? If so, you were also inspected and admitted to the United States.
Now, if you entered the United States, but not through an official border crossing, and without encountering an immigration official, then you probably did enter the United States without papers.
You might ask, “I don’t have any papers now, so why does it matter how I entered?” It matters because how you entered the U.S. may affect your ability to stay in the United States, which brings us to our next point.
How can I fight deportation if I entered the U.S. without inspection?
There are several ways to fight deportation, even if you entered the United States without papers.
One of the most common forms of relief from deportation, for illegal entrants, is called Cancellation of Removal for Non-Permanent Residents. To qualify, you need to show that you have been continuously physically present in the United States during the 10 years before you are officially placed in removal proceedings. You need to show that you’ve been a person of good moral character during this time. And finally, you have to show that your deportation will cause exceptional and extremely unusual hardship to a “qualifying relative,” which includes any U.S. citizen or lawful permanent resident parent, spouse, or child. If you have a criminal history, though, it may bar you from winning this type of relief, depending on the type of crime and the result of the criminal case.
Cancellation of removal is very hard to win, especially because of the hardship requirement.
Another common form of relief for people who entered illegally is asylum. Asylum is a type of protection granted by the U.S. government for people who have a valid fear of returning to their home countries. But it is not enough just to be scared to return. The persecution you fear must be based on one of five things — your race, religion, nationality, political opinion, or membership in a particular social group. Also, you have to apply for asylum within one year of your last entry to the United States. If you have missed this deadline, there are several exceptions, and you can still qualify for other persecution-based types of relief, like withholding of removal and protection under the Convention Against Torture.
There are various other forms of relief from deportation, even for people who came here illegally. To find out more, you should consult with an experienced immigration attorney, and be sure to tell him or her everything you can about your immigration history, criminal history, and your family ties in the United States. There are also a few other important ways to prepare for your immigration court hearing.