Under current U.S. immigration law, an important distinction in defining whether certain laws will apply to an alien in removal proceedings is if the person has ever been officially admitted to the United States. Admission is generally defined as “the lawful entry of [an] alien into the United States after inspection and authorization by an immigration officer.” In other words, if you arrived in the U.S. lawfully and were inspected by an officer, you have been admitted. Those who have been admitted are subject to grounds of deportability if they have committed a certain crime or violated specific guidelines. If you have never been inside the U.S., you cannot be subject to grounds of deportability. On the other hand, those who have not been admitted (or those who did not enter lawfully) are subject to grounds of inadmissibility as they are still “applicants for admission.” Thus, migrants at the border who have not yet entered the U.S. may be subject to grounds of inadmissibility. A key fact to understand, however, is that as of April 1, 1997, both types of grounds are subject to Removal Proceedings, which is when an alien is expelled from the United States (on either grounds of deportability or inadmissibility). You can be put into Removal Proceedings for many different reasons, such as for committing a crime, overstaying your visa or entering the country unlawfully in the first place. All in all, even though inadmissibility and deportation cases are put into the same administrative Removal Proceedings, the possible defenses against removal are different and depend on which case you are.
It is important to note that Removal Proceedings are colloquially known as deportation proceedings, even though legally they do not mean the exact same thing. An everyday person usually equates deportation to removal in the sense that if one thinks of deportation as being expelled from the country, then that is the same thing as removal. However, removal is the correct legal term, whereas deportation is another legal term that means something different than what everyday people usually assume. Legally, noncitizens are removed on either grounds of inadmissibility or deportability; so, deportation and removal do not mean the exact same thing under the law. As mentioned above, a deportation case is one in which the alien has been admitted into the country and may have committed certain criminal offenses that caused him/her to now be in Removal Proceedings. Thus, when people generally say that they are being “deported,” what they mean is that they are being “removed,” on either grounds of inadmissibility or deportability.
There are many different grounds of inadmissibility and grounds of deportability. The major ground of inadmissibility is entering the border without inspection (i.e. being undocumented). Meanwhile, some grounds of deportability include people who enter lawfully but overstay their visa or lawful residents that leave the United States for a continuous period of more than 180 days, among other things.
The removal process starts when a Notice to Appear (“NTA”) is issued to the alien by the U.S. Department of Homeland Security. An NTA is a document an alien receives placing him or her in Removal Proceedings. The NTA instructs the intending immigrant to appear before an Immigration Judge at a certain place, date, and time. When one receives this document, it commences Removal Proceedings. The moment you receive your NTA, your accrual of continuous presence stops, and Removal Proceedings commence. This is otherwise known as the stop-time rule. Accrual of continuous presence is important because an individual is eligible for Cancellation of Removal relief if they have been “physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application.” Now, if you are in these Removal Proceedings, there are different possible avenues of relief. Some examples are Asylum, Withholding of Removal, Convention against Torture and Adjustment of Status.
Noteworthy is the temporal issue of whether or not your court case started before April 1, 1997. If it did, then it falls under a different legal metric of analysis. In the prior structure, there existed two types of proceedings: deportation and exclusion proceedings. In this system, grounds of inadmissibility were referred to as grounds of exclusion. The question back then was whether the person came within grounds of exclusion or grounds of deportation. The biggest difference between this system and the new one is the difference between admission and entry. Today, everything hinges on whether an alien is admissible or inadmissible. Before April 1, 1997, everything hinged on whether the person made an entry into the United States. An entry is different from an admission because an entry is just the act of a person crossing the border into the United States, no matter if they do so lawfully or unlawfully. Under the old framework, a person who made an entry was subject to grounds of deportation. Only those still at the border or those who were refused entry at the border by Immigration and Naturalization Service (INS) faced grounds of exclusion. Furthermore, under the old system, aliens received an “Order to Show Cause” (OSC), which was a document entailing a time, place, and date to appear before an Immigration Judge in either an exclusionary hearing or a deportation hearing. Today, aliens receive NTA’s. In sum, before 1997, no one underwent Removal Proceedings; they went through either exclusionary or deportation hearings, during which they had to prove, based on whether they entered the country, that they did not come within a ground of exclusion or within a ground of deportation, respectively.
If you are currently in Removal Proceedings or have questions about your admissibility, we invite you to contact the Shulman Law Group, a nationally recognized law firm specializing exclusively in immigration matters. Our team of experienced immigration lawyers will help you to determine the kind of relief for which you may qualify.