Deportation has become a source of tears, hardship, and anxiety for many of our clients in recent months.  The new administration has tightened policies, increased the number of ICE arrests, and limited the amount of discretion at the disposal of individual officers. As a result, we have seen an increase in the number of detainees and deportations.  Many have weighed heavily on our minds weeks, or even months afterwards, and we have struggled to communicate effectively the hope we still hold for them.

Yes, there is hope.

Banned from Returning

Each immigration case is different, as it depends on the number of years you are banned from returning to the United States. There are five year bans, ten year bans, 20 year bans, and even permanent bans, which are issued depending on why you were removed and on whether you have a criminal record.  Generally, non-citizens who entered the US illegally without inspection or who overstayed, are unlawfully present in the US.  If you have been unlawfully present for over 180 days, but less than one year, you are banned for three years.  If you have been unlawfully present for over one year, you are barred from re-entering for ten years.

Form I-212

Once deported, you can file I-212 Application for Permission to Reapply for Admission to the United States. You can file the I-121 if you were deported or ordered removed and voluntarily departed. You may also need to file the I-212 if you were previously removed and then re-entered unlawfully, or if you were illegally present in the United States for over one year.  The I-212 should be filed with applicable supporting evidence and the filing fee alongside a visa application.  Supporting evidence can range from family ties in the US to changed country conditions to rehabilitation, depending on your individual reasons for inadmissibility. By submitting the form, you are asking Immigration (USCIS) to overlook your “inadmissibility” (the reason you were deported) and grant you another application that would allow you to re-enter the US (such as a Visa application).

If granted, you are able to re-enter the US and do not have to worry about your previous illegal status.

Form I-601

If you are deemed inadmissible for circumstances other than illegal entry and unlawful stay, then you may need to file an I-601, Application for Waiver of Grounds of Inadmissibility alongside your other applications.  The I-601 Waiver requires you to prove extreme hardship to an immediate family member who is a US citizen or permanent resident.

USCIS has deemed extreme hardship factors to include (but not limited by) health, financial considerations, education, personal considerations, and special factors. Evidence of extreme hardship should be carefully annotated, but keep in mind the I-601 Waiver is a discretionary relief, meaning the officer reviewing your case will interpret your extreme hardship and decide whether to grant your request for waiver.

When preparing to file for I-601, it’s important to note that while you may qualify to apply, there is no guarantee that your application will be accepted.  Your chances of success may be low if you have previously violated immigration law, if you have criminal charges/arrests/convictions, or marriage fraud.  Such circumstances could weaken your application and require proof of more extreme hardship than others.

Re-entering Illegally is a Felony

We cannot stress enough how important it is to re-enter the United States lawfully post-deportation. The reason is that illegally entering the United States is a misdemeanor (8 U.S.C. § 1325), but illegally entering, or attempting to enter, the United States after removal is a felony crime (§ 1325 is 8 U.S.C. § 1326). Your previous proceedings and orders will be “reinstated”, meaning you’ll likely not have a chance to defend yourself in front of an Immigration Judge and you may be permanently barred from entering the US.

If you’re unsure as to whether you qualify for any of the above waivers, or if would like to know your chances, talk to an experienced immigration attorney.