Deportation and Removal

Introduction

Deportation —now formally called removal —is the process by which the US government expels noncitizens from the country. The removal process is governed by the Immigration and Nationality Act (INA) and is administered by the Department of Homeland Security (DHS) and the Executive Office for Immigration Review (EOIR). Removal proceedings involve determinations of removability, eligibility for relief from removal, and ultimate removal or grant of status.

Grounds of Removability

The INA defines numerous grounds of removability in § 237. Noncitizens may be removed for: inadmissibility at the time of entry or adjustment of status; conviction of certain crimes, including aggravated felonies, crimes involving moral turpitude, and drug offenses; overstaying a visa or violating status; fraud or misrepresentation in immigration matters; security-related grounds; and public charge grounds.

Criminal grounds are among the most common bases for removal. An aggravated felony conviction triggers severe consequences, including mandatory detention, almost certain removal, and ineligibility for most forms of relief from removal. The term aggravated felony is defined broadly in INA § 101(a)(43) and includes offenses as varied as murder, theft offenses, and certain fraud offenses.

Removal Proceedings

Removal proceedings are administrative hearings conducted by immigration judges in the Department of Justice’s Executive Office for Immigration Review. The process begins with the issuance of a Notice to Appear (NTA) charging the noncitizen with removability. The noncitizen has the right to be represented by counsel at no expense to the government.

In removal proceedings, DHS bears the burden of proving removability by clear and convincing evidence for lawful permanent residents and by a preponderance of the evidence for other noncitizens. The immigration judge determines removability and, if removability is established, considers eligibility for relief from removal.

Relief from Removal

The INA provides several forms of relief from removal. Cancellation of removal is available to certain lawful permanent residents who have resided in the United States for at least seven years and have not been convicted of an aggravated felony. Nonpermanent residents may qualify for cancellation if they have been physically present for ten years, have good moral character, and can show that removal would cause exceptional and extremely unusual hardship to a US citizen or permanent resident spouse, parent, or child.

Voluntary departure allows the noncitizen to leave the United States at their own expense, avoiding a formal removal order and its attendant consequences. Voluntary departure is available before the conclusion of removal proceedings and, in some cases, after a removal order.

Withholding of Removal and CAT Protection

Withholding of removal under INA § 241(b)(3) requires the Attorney General to withhold removal to a country where the noncitizen’s life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. The standard is more stringent than asylum: the noncitizen must show that persecution is more likely than not.

The Convention Against Torture (CAT) provides protection from removal to a country where the noncitizen would more likely than not be tortured by or with the acquiescence of public officials. CAT protection is distinct from asylum and withholding; it does not require a nexus to a protected ground and cannot be waived on security grounds.

Detention During Removal Proceedings

DHS has broad authority to detain noncitizens during removal proceedings. Mandatory detention applies to certain categories of noncitizens, including those convicted of aggravated felonies, certain controlled substance offenses, and those with terrorist connections. Other noncitizens may be detained or released on bond or supervision.

The Supreme Court in Zadvydas v. Davis (2001) held that the government may not indefinitely detain a noncitizen who cannot be removed after a final removal order. The Court established a six-month presumptively reasonable period for post-removal-order detention.

Conclusion

Deportation and removal proceedings are high-stakes administrative proceedings with severe consequences for noncitizens. The grounds of removability, the procedural framework, and the forms of relief define a complex system that balances immigration enforcement with humanitarian protections. The availability of relief from removal —including cancellation, withholding, and CAT protection —reflects the law’s recognition that removal may cause disproportionate hardship.