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Inadmissibility, Deportation, and Bars to Reentry

Contents

    People who are not U.S. citizens or lawful permanent residents (LPRs, or green card holders) have to ask for permission to enter the country. Once here, the federal government can deport them if they commit certain acts.

    Inadmissibility

    When non-U.S. citizens and some LPRs enter the country, they must be “admissible” (allowed to enter). Someone applying for an immigrant visa or green card must also be admissible. Otherwise, U.S. Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), or the Department of State (DOS) will not issue the visa or approve the application to enter. Some of the reasons a person could be inadmissible (not allowed to enter the U.S.) are:

    • Poor health (like having a communicable disease or not having required vaccinations)
    • Criminal history (inside or outside the U.S.)
    • Being a threat to national security
    • Becoming a public charge (relying on the U.S. government for support – determined based on things like health, age, family status, work history, and education)
    • For people looking to get LPR status through employment, lack of labor certification from the U.S. Department of Labor
    • Fraud or misrepresentation
    • Prior immigration violations, including entering without permission (see Immigration Violations below to learn more)
    • Having a criminal history does not automatically make you inadmissible. Inadmissibility is a complex area of immigration law. Even if you are inadmissible, you might qualify for a waiver. Sometimes there are no waivers for a particular ground of inadmissibility. If you have questions about any potential ground of inadmissibility, you may want to talk to a U.S. immigration lawyer. If you would like talk to an immigration lawyer in Michigan, use the Guide to Legal Help to find lawyers and legal services near you.

    If you are seeking a tourist visa at a U.S. embassy or consulate overseas, the most common reason to deny the visa is immigrant intent (you want to stay in the U.S.). If you cannot show that you will likely return to your country of origin after you are done travelling, you will be denied a visa.

    At the border, there is very little that can be done if you feel that you were wrongly denied entry to the U.S. This is because people have limited rights in border zones. You can file a complaint with Customs and Border Protection (CBP) or with the Department of Homeland Security (DHS) Civil Rights and Civil Liberties Compliance Branch. However, the effectiveness of these complaints is unclear.

    Deportation

    Any noncitizen can be deported from the U.S. for certain reasons. Some of those reasons are:

    • They were inadmissible when they entered the U.S.;
    • They were inadmissible when they adjusted their status;
    • They violated the conditions of their status;
    • They have a criminal history;
    • They are acting on behalf of a foreign government, political party, organization, or person, and they failed to register with the U.S. Department of Justice or they falsified documents;
    • They are a security threat;
    • They have become a public charge; or
    • They voted illegally.

    Having a criminal history does not automatically mean you will be deported. Different crimes have different consequences when it comes to making someone deportable. If you are charged with a crime as a noncitizen (even as an LPR), it is very important that you speak with a lawyer who understands the immigration consequences for the charge. If your defense lawyer does not know these consequences, ask them to consult with an immigration lawyer. Use the Guide to Legal Help to find immigration lawyers in your area.

    Voluntary Departure

    If you are facing deportation, you could qualify for voluntary departure. This means that instead of being ordered deported, you agree to leave the U.S. within a certain time period (usually less than 120 days). You can request this type of relief from an immigration judge (IJ). The benefit of voluntary departure is that you do not have a deportation on your immigration record. The penalty period for returning to the U.S. is also shorter.

    Failure to leave within the time granted could result in a fine, being inadmissible for five years, and very limited forms of relief available in deportation proceedings for ten years.

    Expedited Removals

    The expedited removal (deportation) process allows immigration officers to quickly deport certain noncitizens without going to court. This process applies to two groups of noncitizens:

    • Noncitizens at a port of entry who are not eligible to enter the U.S., and
    • Noncitizens who are out of status and detained within two years of arrival and within 100 miles of a U.S. border.

    Generally, the expedited removal process only consists of an interview with an immigration officer. This means you will not see an immigration judge. There is no right to appeal the officer’s decision. You will be detained until deported, which will happen within a few hours or days. Depending on your country of origin, ICE or CBP officers may need to get a passport or other travel documents for you before you can be deported.

    Noncitizens who express a credible fear of returning to their home country should be given an opportunity for a hearing with an immigration judge (IJ). Unfortunately, there is very little that can be done if you feel that you were wrongly deported using the expedited removal process. You can file a complaint with CBP or with the DHS Civil Rights and Civil Liberties Compliance Branch. However, the effectiveness of these complaints is unclear.

    Reinstatement

    Reinstatement is a process that is closely connected to the expedited removal process. If you were previously deported and you returned to the U.S. before you were allowed to, your underlying deportation will be reinstated (put in place again). You will not get a hearing with an IJ even if your circumstances have changed.

    Immigration Violations

    If you are in the U.S. without lawful immigration status or presence, there will be consequences if you leave and try to return. For example, if you come to the U.S. on a tourist visa and are allowed to be here for three months but overstay for a month, you will be unlawfully present during the extra month. The same is true if you enter the U.S. without first being inspected. Every day you are here after you enter without inspection you are accruing unlawful presence. The amount of unlawful presence you accrue affects your ability to return to the U.S. if you leave.

    • If you accrue less than 180 days of unlawful presence, there are no barriers to returning to the U.S.
    • If you accrue more than 180 days but less than one year (365 days), of continuous unlawful presence, you will be barred from re-entering the U.S. for three years.
    • If you accrue more than one year of total unlawful presence, you will be barred for 10 years. There is a waiver for one continuous accumulation of unlawful presence. See the Waivers section below to learn more.

    If you received a Notice to Appear (NTA) but failed to attend your deportation hearing, you can be barred for five years. There is no waiver available for this bar.

    If you were deported, you will usually need to spend ten years outside the U.S. before being allowed to apply to return. Returning sooner could increase the time penalty to twenty years, along with potential fines and/or jail time.

    Waivers

    Waivers to the three-year and ten-year penalties (described above) are available if you have a U.S. citizen or LPR spouse or parent. If you apply for the waiver, you must prove that denying the waiver would result in “extreme hardship” to your U.S. citizen/LPR spouse or parent. Any hardship to you, the applicant (or your U.S. citizen children), is not considered. “Extreme hardship” is not defined, but must be more than what commonly results from family separation or relocation. Some examples of factors used to determine this include:

    • Economic problems
    • Struggles (re)adjusting to life in a different country
    • Lower quality and less access to education
    • Lower quality and less access to medical services
    • Lower quality and less access to employment opportunities

    When deciding whether to grant a waiver, the USCIS officer must look at all the information available. The officer must weigh the factors separately and together. First, the officer must decide whether any factor alone rises to the level of extreme hardship based on all the information available. If no factor alone does that, the officer must consider all factors together to determine whether they rise to the level of extreme hardship.

    For other grounds of inadmissibility, some waivers are available. The waivers can be complex.

    To learn more, speak with an immigration lawyer. Use the Guide to Legal Help to find immigration lawyers and legal services near you.

    Know Your Rights

    Regardless of your immigration status, you have certain rights. Immigration and Customs Enforcement (ICE) officers must have a search warrant signed by a federal judge if they want to enter your home without your permission. If officers knock on your door, you do not have to open it. Ask if they have a warrant. If they have a warrant, ask them to slide it under your door or show it to you through a window.

    Look at the warrant carefully. It should list all of the following:

    • The United States District Court for the district in which your home is located
    • Your address
    • The name of the person they are looking for
    • The judge’s name and signature
    • The dates the warrant is effective

    You have the right to not let the officer enter if the warrant does not have all this information. If the officer does not have such a warrant, you do not have to open your door. If your child opens the door, it is as if you did.

    The officer could have an ICE warrant, but that is not the same thing. An ICE warrant allows ICE officers to arrest someone who is unlawfully in the U.S. An ICE warrant does not allow officers to enter private places, like a home.

    If you are stopped by a border patrol or ICE officer, you do not have to answer questions about your immigration status. You can explain your status to the officer if you want to, but you may want to speak with a lawyer first.

    Do not sign any papers officers give you if you do not understand them. You may be giving up your rights. You have a right to a hearing in front of an immigration judge. You also have the right to call your country's consulate or to have the police tell your consulate that you are arrested.

    You have the right to talk to a lawyer before answering any questions or signing any papers. Generally, you have the right to call a lawyer if you are detained. One exception to this right is if an immigration officer is detaining and deporting you using the expedited removal process. To learn more about this, read the Expedited Removals section above.

    You have the right to have a lawyer with you at any hearing in front of an immigration judge. You do not have the right to a court-appointed lawyer. You must find your own lawyer. Use the Guide to Legal Help to find immigration lawyers and legal services near you.

    The Michigan Immigrant Rights Center offers resources that could help you and your family prepare for interactions with immigration agents.