When a friend or family member attempts to cross the border into the United States without permission, or succeeds in doing so, but then at some point is caught by Immigration and Customs Enforcement (ICE), the person might contact you for help. Needless to say, entering the U.S. without permission is illegal.
Let's say, for example, you have a brother from El Salvador, who is young and unmarried, and being held in immigration detention. What can you tell him? Is it automatic that he will be deported, or is there any hope of remaining? Here are the basics.
Recently Arrived Undocumented Immigrants Are Often Removed Quickly
It's reasonable to expect someone who crossed the border without permission will have to go back to the country, sooner or later. Exactly how soon this might happen depends on a number of factors, such as:
- any prior entries and removals
- length of time spent in the U.S.
- current U.S. enforcement priorities for removal
- whether the person has a credible fear of persecution in the home country and can apply for asylum
- whether leaving voluntarily is an option, and
- whether an immigration judge will hear the case.
Whether the Person Has Been Ordered Removed Before
If there is an order of removal in the person's file, the immigration authorities can simply act on that previous order of removal and send him or her back to El Salvador right away. Still, if you think the person might have any argument for staying, you might want to consult an immigration attorney, who could potentially ask that the case be reopened.
How Long the Person Has Been in the United States
Someone who only recently came to the U.S., might be subject to "expedited removal," meaning that he or she can be deported quickly, without a hearing before an immigration judge.
If, on the other hand, the person has been in the U.S. for ten or more years, has been of good moral character, and can show that deportation would cause "exceptional and extremely unusual hardship" to any qualifying relative(s) who is (or are) U.S. citizens or lawful permanent residents, he or she might qualify for "cancellation of removal
," which leads to a green card. This will likely involve at least two hearings in immigration court
, and take many months or even years to resolve.
Additionally, depending on the country of origin and whether it's generally safe for people to go back there at this time, the person could potentially qualify for Temporary Protected Status (TPS
Whether the Person Is a High Priority for Deportation
Sometimes the U.S. government will grant prosecutorial discretion
or administrative closure of cases that are not of highest priority. An undocumented person who has a clean criminal record and has been in the U.S. for more than three years might want to examine this option, most likely with an attorney's help.
Of course, if the person is considered a high priority of deportation, the system might move quickly toward deportation.
Whether the Person Fears Persecution or Torture Upon Return
Someone who fears persecution upon returning home might be able to avoid the effects of expedited removal and present a case for asylum, withholding of removal, or Convention Against Torture relief before an immigration judge. Any of these can lead to a long-term right to remain in the United States.
Whether the Person Would prefer to Leave Voluntarily, Without Further Proceedings
See Voluntary Departure: Who Is Eligible?
for more information on this option. Asking the immigration judge to grant voluntary departure avoids the effects of a removal order, in particular the long-term bar to future U.S. immigration that removal creates. It's a good way to protect one's right to immigrate in the future, if there's a possibility that the person will have some grounds upon which to do so.
Whether the Person Is Placed Into Removal Proceedings
If so, see Judge's Decision in Immigration Court: How Long It Will Take to Get
for further analysis of the likely timing. As alluded to above, court proceedings can take months or years, because the system is so backed up with various types of cases. Although these delays can be beneficial in some instances, the person's life will not be easy in the meantime; either waiting in detention or living in the U.S. with possibly no right to work (depending on the type of case).
As you can see, dealing with deportation proceedings is a highly complex area of immigration law, and getting your friend or family member in contact with an experienced immigration attorney would be well worth your while.