You might think that a deportation order would ruin your immigration options but you would be surprised to find out that it’s not always the case.
Removal is the compulsory movement of an inadmissible or deportable alien out of the US based on a final order of removal. Deportation is the popular term for removal but, technically, deportation refers to the old process of removing an alien who was already in the US as opposed to exclusion which was the process for removing someone who was trying to enter the US. Deportation and exclusion proceedings no longer exist and were replaced by one unified process called removal proceedings.
A removal order becomes final when an Immigration Judge (IJ) has ordered an alien’s removal and the alien has not appealed. If an alien filed an appeal, the order becomes final when the Board of Immigration Appeals (BIA) has issued a decision affirming the IJ’s removal order.
To determine whether a final removal order would prevent an alien from getting a green card through adjustment of status, we must first find out whether this order was executed or not. A removal order was executed if immigration authorities actually removed an alien from the US. If a removal order was executed, an alien would not qualify for adjustment or even an immigrant visa through consular processing because such alien would be inadmissible due to his actual removal.
If a removal order was not executed, an alien would qualify for adjustment. However, if a removal order was entered in absentia, which means the alien failed to appear at his hearing, the alien would be barred from adjusting status for a period of 10 years after the entry of the removal order even if such order was never executed.
Let’s look at my client’s case as an example. In 1996, client arrived at the Los Angeles International Airport but immigration authorities initiated exclusion proceedings and paroled her into the US. In 1997, the IJ ordered her exclusion from the US but she never left. The exclusion order was unexecuted. In 2012, client’s US Citizen son turned 21 years old and promptly filed an immigrant petition for client. Client then applied for adjustment. We argued that she qualified for adjustment because her exclusion order was never executed. USCIS agreed with our position and approved client’s adjustment.
Let’s change the facts in my client’s case. If for example client was deported in 1997 after the issuance of her exclusion order. The following year, she returned to the US without inspection. In 2012, she applied for adjustment under INA 245(i). In this case, she would not qualify for adjustment because she was previously removed from the US. She would be inadmissible for entering the US after being deported. She would also be subject to a reinstatement of her prior exclusion order, which means that she’s not entitled to a removal hearing before an IJ because immigration authorities can deport her anytime based on the old exclusion order.
If for example, client did not appear at her 1997 hearing and the IJ ordered her exclusion, client would not qualify for adjustment for a period of 10 years from 1997 even if she never left and the exclusion order was never executed because the order was entered in absentia. If she applied for adjustment in 2005, her application would be denied because it was within 10 years from 1997. If she applied for adjustment in 2012, then she would qualify because it was beyond 10 years.
The other important matter you should remember when filing an adjustment application in a case where there was a prior removal order is to find out which agency has authority to consider the adjustment. It’s not enough to know that an unexecuted removal order is not a bar to adjustment.
If for example, you have an unexecuted removal order and you later applied for adjustment with USCIS, USCIS would deny your adjustment, not because you have a removal order but because the IJ has jurisdiction over your adjustment application since you were previously in removal proceedings. You must first file a motion to reopen your removal proceedings and then apply for adjustment with the IJ.
However, if you were paroled into the US during your last entry, you would be classified as an arriving alien. This means that even if you are in removal proceedings, the IJ has no authority to consider your adjustment application because only USCIS has jurisdiction over the adjustment of arriving aliens.
Applying for adjustment when you have a prior removal order is filled with dangerous possibilities. However, it’s worth a try when it’s your only option because the alternative of applying for an immigrant visa abroad might be even more difficult.