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What is deportability? 

Deportability refers to the legal status of a foreign national being subject to removal from the United States (note that the term "removal" has replaced "deportation" in much of the official U.S. immigration law terminology, and those terms are used interchangeably in this post). 

Key Takeaways 

  • Deportability can arise from various scenarios, such as a foreign national on a student visa dropping their studies, a green card holder committing an aggravated felony, or a foreign national working without authorization.
  • Individuals facing deportation have rights, including having a hearing before an immigration judge, legal representation, and the right to appeal.
  • Opting for voluntary departure can prevent the ten-year re-entry ban associated with official removal proceedings.

Deportability vs inadmissibility  

While inadmissibility and deportability are similar to the extent that they both deal with an individual's eligibility to enter or remain in the U.S., they differ in the stages and circumstances of enforcement. Whereas inadmissibility typically applies to individuals seeking entry into the U.S. (either as visitors or immigrants) and is determined at ports of entry, deportability concerns individuals already in the U.S. who may be subject to removal due to specific violations or changes in their immigration status. 

Grounds for Deportability 

The grounds for deportability encompass a wide variety of circumstances and conduct, including: 

  • Noncompliance with Visa Conditions: For example, a foreign national enters the U.S. legally on a student visa but becomes deportable after dropping out of their educational program.
  • Criminal Convictions: For example, a lawful permanent resident (i.e., a green card holder) commits an aggravated felony, which is a removable criminal offense.
  • Unauthorized Employment: For example, a foreign national arriving in the U.S. on a visa not related to employment starts working illegally without obtaining the necessary work authorization.
  • Fraudulent Activity or Misrepresentation: For example, a foreign national provides false information or omits critical details on their visa application or to immigration officials.
  • Failure to Register: For example, an asylum seeker or refugee fails to attend mandatory check-in appointments with immigration authorities.

Another critical distinction between inadmissibility and deportability involves one's rights to due process. Generally speaking, due process refers to the fundamental legal principle that individuals are entitled to fair and impartial treatment under the law. 

Because inadmissibility determinations occur before an individual establishes a legal presence in the U.S., they are afforded few due process protections. Conversely, deportation proceedings involve individuals who already have established a presence in the U.S., entitling them to more due process protections—even if they entered the U.S. and remain there illegally. 

The scope and extent of these protections vary based on several factors, including the specific grounds for their deportability, the individual's immigration history, and the extent of their established relationships in the U.S. That said, the scope of due process rights for those facing removal may include:

  • A hearing before an immigration judge.
  • The right to be represented by an attorney.
  • The right to present evidence in their defense.
  • The right to appeal an adverse decision to the Board of Immigration Appeals (BIA)
  • In some cases, the right to further appeals within the federal court system.

The Benefits of Voluntary Departure 

Choosing to leave the U.S. voluntarily instead of undergoing official removal proceedings can be greatly beneficial, especially because it avoids the ten-year ban on re-entering the U.S. that automatically applies to removed individuals. Voluntary departure in the U.S. can be contingent on specific eligibility requirements, such as having a clean criminal record, exhibiting good moral character, and demonstrating their financial capability to cover their travel expenses (in fact, in some cases, they may be required to post a bond). 

Furthermore, it’s better to apply for voluntary departure as early as possible in the removal proceedings, as early requests are more likely to be granted, and late requests might be granted but with stricter conditions attached.

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