What is the difference between an Order of Deportation, an Exclusion Order, and an Order of Removal?
- “Deportation Proceedings” began prior to April 1, 1997 for “deportable aliens”
- “Exclusion Proceedings” began before April 1, 1997 for “excludable aliens.”
- “Removal Proceedings” are all proceedings that began after April 1, 1997.
How Can I Tell If I was Placed into Any Of These Proceedings?
You were officially placed into proceedings if a charging document has been filed with the Immigration Court.
Look through your paperwork that an Immigration Officer, ICE agent, or Border Patrol agent gave you. At the very bottom or the very top of the paper, you will see a form number:
- Form I-221, Order to Show Cause (Deportation)
- Form I-122, Notice to applicant for Admission Detained for Hearing (Exclusion)
- Form I-862, Notice to Appear
Below we have reproduced images of these forms. On a rare occasion, it is possible that ICE prepared a charging document, but for whatever reason, this charging document was never filed with the Immigration Court. In this instance, the official was never “put into proceedings.”
Why Is It Important to Know If I Was Placed Into Proceedings?
There are two reasons that we like to know if you were placed into removal proceedings. First, if a charging document was ever filed with the Immigration Court (whether or not you appeared in Immigration Court), the “jurisdiction” moves from USCIS to the Immigration Court. All else being equal, if one client was in removal and another client was not in removal, and both filed their marriage-based green card cases with USCIS, the one who was not in removal would have their case approved (assuming they are eligible) and the one who was in removal would have their case denied for “lack of jurisdiction” (unless they were an arriving alien). So the first reason it is important is to know who has jurisdiction to decide your case.
The second reason it is important to know if you were in removal is to find out if you have a removal order. If you are eligible to obtain a marriage-based green card but have an old removal order, you must reopen your case before the Immigration Court to either dismiss the removal order or have your green card case hear by an Immigration Judge (usually if you have criminal conviction(s)). We have successfully reopened and terminated deportation orders from the 1970s.
For one of our clients, we filed a FOIA with USCIS. In the FOIA response, we found an Order to Show Cause that was prepared but not signed or dated. We checked with DHS and with the EOIR automated system, and both records confirmed that the this charging document had never been filed with the Immigration Court. In another case, the client presented Form I-122. We filed a FOIA with the Immigration Court and the record showed (and DHS confirmed) that this charging document had never been filed with the Immigration Court. If the charging documents had been filed in either of these cases, we would have to have reopened the cases and dismissed the charges before filing our clients’ green card cases with USCIS.
How Does All of This Affect A Person?
All three (3) types of proceedings will land you before an Immigration Judge.
Deportation proceedings only apply to people who are physically present inside the U.S. and have committed an act that make them deportable from this country (e.g., criminal offense, terrorist activity, inadmissible at time of entry/adjustment, false claim to U.S. citizenship, previously deported, etc.).
If a person is determined to be deportable from the United States, the person may be deported from this country and forced to return to the last foreign departure point, deported to the home country (sometimes at government expense), or may be ordered deported and held in detention indefinitely in cases where the person’s home country will not accept the deported person (e.g., Cuba, Vietnam, etc.). The person will be given form I-221, Order to Show Cause.
Exclusion proceedings only apply to people arriving at a Port of Entry, Airport/Sea Landing Zone, or other Entry/Departure Route to or from the United States. Exclusion is the formal proceeding in which a person’s admissibility to the United States is determined. If a person is determined to be inadmissible to the United States, the person may be excluded from entry and forced to return to his or last foreign departure point or deported to his home country (at government expense).
When a person arrives at a port of entry to the United States, he is subject to inspection. CBP officers question all applicants for admission (U.S. citizens, lawful permanent resident, nonimmigrant visitor, or other status), look at their paperwork, and then decide whether the person should be allowed to enter the United States. If an issue during inspection due to a criminal conviction, abandonment of status due to excessive absences from the U.S., terrorist activity, medical contamination, physical/mental defect, etc.), the person will be given Form I-122, Notice to Applicant for Admission Detained for Hearing before Immigration Judge.
Removal proceedings take place for people who are physically present inside the United States and have been found to have committed an act that may render them deportable from this country. Deportation and Exclusion proceedings were combined into one unified proceeding known as “Removal”. If a person is found to be deportable from the United States, the person may be “removed” from the United States and forced to return to the last foreign departure point, “removed” to his home country (sometimes at government expense), or may be ordered “removed” and held in detention indefinitely in cases where the person’s home country will not accept a “removed” person (e.g., Cuba, Vietnam, etc.).
When a person is found to be physically present within the borders of the United States and is determined by an Immigration officer, inspector, or Border Patrol agent to have committed an act (e.g., criminal offense, terrorist activity, inadmissible at time of entry/adjustment, false claim to U.S. citizenship, previously deported, etc.) that is inconsistent with his claimed immigration status, then the person will receive a Form I-862, Notice to Appear.
Many times when a client receives a Notice to Appear, there is no date and time to appear before an immigration judge. This is because a hearing date will be mailed to the address provided. It is not unusual for a person to move before getting the hearing notice. If this happens and the person does not change his or her address with the Immigration Court and Homeland Security, the person will not receive the hearing notice. If the person does not appear at the hearing, the person will be “ordered removed in absentia.”
The Form I-863 is a Notice of Referral to Immigration Judge that is used in credible fear, reasonable fear, claimed status review, asylum-only and withholding only proceedings.
How Can You Help Me Get My Order Reopened?
Generally, a motion to reopen must be filed no later than 90 days from the date of the order. Apart from this, the best approach it to obtain the government’s consent to reopen the case. A motion to reconsider must be filed within 30 days after the mailing of the Board’s decision.
The only exception is a motion to rescind an in absentia order which does not have a deadline if you are claiming that you never received notice. Proof of failure to receive the notice can be difficult. A motion to reopen an in absentia order for any other reason, such as to adjust status, is bound by the 90-day deadline.
We are highly skilled in preparing prosecutorial discretion arguments to persuade the government to reopen the case months, years, or decades after an order has been issued. These filings that often exceed 100 pages contain memorandum of facts and procedural history, legal arguments, new facts, and documents that support a reopening of the case. Our newest approach will be filing a motion to reopen a removal order before the Board of Immigration Appeals.
How We Can Help:
- Whether is an Order from in absentia (did not appear at hearing) or from Voluntary Departure (but never departing the U.S.), we can file a motion to reopen the proceeding.
- We reopened an Order of Deportation from 1972. The Order to Show Case was Dismissed. We filed the client’s green card application and she was approved.
- We reopened an Order of Deportation from 1995. The Order to Show Case was Dismissed. We filed the client’s green card application and she was approved.
- We reopened an Order of Removal from 2002. The case was terminated. We filed the client’s application for naturalized and it was approved.
We offer a free case evaluation by phone. We are available Monday through Friday from 8:30 am to 8:00 pm and Saturday from 8:00 am to 12:00 pm. In-person consultations are by appointment only. Please call our office at 301.529.1912 or click here to contact us. Please be sure to provide a timeline of events along with details of your entire immigration history.