To deport a person from the United States, the federal government must have a legal ground for removal under the Immigration and Nationality Act and must use one of two procedures: full removal proceedings before an immigration judge, or expedited removal ordered by an immigration officer without a court hearing. Which track a case takes depends on the person’s immigration history, any criminal record, and where immigration authorities encountered them.
Who Can Be Deported
Federal law lists the specific reasons a non-citizen becomes deportable. They fall into a handful of categories.
Criminal convictions are among the most common triggers. A conviction for an aggravated felony at any time after admission makes a person deportable. So does a conviction for a crime involving moral turpitude when the offense happened within five years of admission and carries a potential sentence of one year or more. Two or more convictions for crimes involving moral turpitude also qualify, even without jail time. Drug offenses and firearms offenses each independently make a person deportable, with a narrow exception for possession of 30 grams or less of marijuana for personal use.1Office of the Law Revision Counsel. 8 USC 1227 – Deportable Aliens
Immigration violations cover overstaying a visa, being inadmissible at the time of entry or adjustment of status, marriage fraud, and document fraud. A person who was inadmissible when they entered can be placed in removal proceedings years later if the government discovers the issue.1Office of the Law Revision Counsel. 8 USC 1227 – Deportable Aliens
National security concerns and certain terrorism-related activities provide independent grounds. Separately, a person who becomes a public charge — dependent on certain government cash assistance programs like Supplemental Security Income or Temporary Assistance for Needy Families after entry — can face deportation on that basis alone.1Office of the Law Revision Counsel. 8 USC 1227 – Deportable Aliens
How the Government Starts a Removal Case
The formal process begins when the Department of Homeland Security files a Notice to Appear (Form I-862) with an immigration court. The document lists the factual allegations against the non-citizen — date of entry, immigration status, specific conduct — and the legal charges explaining why DHS believes the person should be removed.2Executive Office for Immigration Review. The Notice to Appear Three DHS agencies can issue the Notice to Appear: Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS).3U.S. Immigration and Customs Enforcement (ICE). DHS Form I-862 Notice to Appear
Once the Notice to Appear reaches the court, the case enters the immigration court system run by the Executive Office for Immigration Review (EOIR), a branch of the Department of Justice. This is not the same court system that handles criminal or civil cases.
Expedited Removal Without a Judge
Not every deportation goes through a hearing. Expedited removal lets immigration officers order someone removed without ever seeing a judge. It applies to people who arrive at a U.S. port of entry without valid documents or who used fraud to try to gain admission. It can also apply to people encountered inside the country who have not been admitted or paroled and cannot show they have been continuously present in the U.S. for the prior two years.4Office of the Law Revision Counsel. 8 USC 1225 – Inspection by Immigration Officers; Expedited Removal of Inadmissible Arriving Aliens
One safeguard is built in. If the person tells an immigration officer they fear persecution or want to apply for asylum, the officer must refer them for a credible fear interview with an asylum officer rather than ordering immediate removal. In that interview, the person needs to show a significant possibility that they could establish a valid asylum claim or that they would face torture if returned to their home country.5U.S. Citizenship and Immigration Services. Questions and Answers: Credible Fear Screening A positive finding moves the case into full proceedings. A negative finding can be reviewed by an immigration judge, but the process moves fast.
What Happens in Immigration Court
Cases that go through full proceedings are heard by immigration judges in EOIR courts. There are more than 500 immigration judges across more than 60 courts nationwide.6Executive Office for Immigration Review. Learn About the Immigration Court The process unfolds in two stages.
Master Calendar Hearing
The first court appearance functions like an arraignment. The judge advises the person of their rights, reads the charges from the Notice to Appear, and asks the person to respond — admitting or denying each factual allegation and saying whether they agree with the charges of removability. If the person plans to apply for any form of relief, the judge sets a schedule for the next phase.7Executive Office for Immigration Review. Learn About the Immigration Court – Section: Type of Hearings
Individual Merits Hearing
The merits hearing is where the case is decided. Both sides — the non-citizen and the DHS attorney — present evidence, file documents, and make legal arguments. The non-citizen can testify, call witnesses, and submit supporting records like medical documentation, police reports, or affidavits. The judge weighs everything and decides whether the person is removable and whether they qualify for any form of relief.7Executive Office for Immigration Review. Learn About the Immigration Court – Section: Type of Hearings
Unlike criminal court, immigration court does not provide a free attorney. Non-citizens have the right to be represented, but at their own expense.8Office of the Law Revision Counsel. 8 USC 1362 – Right to Counsel Many people go through these proceedings alone, often in a language they do not fully understand.
Detention and Bond While the Case Moves
People placed in removal proceedings are often taken into ICE custody. Some categories face mandatory detention with no possibility of release on bond. That includes people certified by the Attorney General as suspected terrorists or those believed to be engaged in activity that endangers national security.9Office of the Law Revision Counsel. 8 USC 1226a – Mandatory Detention of Suspected Terrorists People with certain criminal convictions, particularly aggravated felonies, drug offenses, and firearms offenses, are also generally subject to mandatory detention.
For everyone else, an immigration officer or an immigration judge can set a bond amount. To be released, the person must show they are not a danger to people or property and are likely to appear for future court dates. For certain categories of detainees, both points must be proven by clear and convincing evidence.10eCFR. 8 CFR 1236.1 – Apprehension, Custody, and Detention Bond amounts vary widely depending on the judge’s assessment of flight risk and the person’s ties to the community.
Ways to Stop Deportation
Being placed in removal proceedings does not automatically mean the person will be deported. Several legal options can allow someone to stay, each with strict eligibility requirements.
Cancellation of removal is available in two forms. Lawful permanent residents can apply if they have held that status for at least five years, lived in the U.S. continuously for seven years after being admitted in any status, and have never been convicted of an aggravated felony. Non-permanent residents need at least 10 years of continuous physical presence, good moral character throughout that period, no disqualifying criminal convictions, and proof that removal would cause exceptional and extremely unusual hardship to a qualifying U.S. citizen or lawful permanent resident spouse, parent, or child. Hardship to the person being deported does not count.11Office of the Law Revision Counsel. 8 USC 1229b – Cancellation of Removal; Adjustment of Status
People who fear harm in their home country can apply for three overlapping protections. Asylum is available to those who have been persecuted or have a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion.12Office of the Law Revision Counsel. 8 USC 1158 – Asylum Withholding of removal blocks return to a specific country of danger and requires showing it is more likely than not that the person’s life or freedom would be threatened on account of one of those same five grounds; it does not lead to permanent residence and does not stop removal to a different country.13Office of the Law Revision Counsel. 8 USC 1231 – Detention and Removal of Aliens Ordered Removed Protection under the Convention Against Torture is the last safety net: a person who can show it is more likely than not they would be tortured by or with the consent of a government official cannot be sent to that country, regardless of criminal history that would bar asylum or withholding.14eCFR. 8 CFR 208.16 – Withholding of Removal Under the Convention Against Torture
Some people in removal proceedings are actually eligible for a green card through adjustment of status. If the person qualifies for an immigrant visa through a family petition, employment sponsorship, or another category, they may be able to adjust to permanent resident status without leaving the country. They must have been inspected and admitted or paroled into the U.S. and must have a visa immediately available.15Office of the Law Revision Counsel. 8 USC 1255 – Adjustment of Status
Waivers of inadmissibility can forgive specific grounds like prior unlawful presence, certain criminal convictions, or previous fraud, though they often require showing extreme hardship to a qualifying relative. Non-citizens who have been victims of certain serious crimes and cooperated with law enforcement may qualify for a U visa, and victims of human trafficking may qualify for a T visa. Being in removal proceedings does not automatically disqualify someone from applying for either.
Voluntary Departure
At various points in the process, a non-citizen may be offered or may request voluntary departure. This is permission to leave the country on their own instead of being formally deported, and the distinction matters. A person who departs voluntarily does not have a removal order on their record and avoids the re-entry bars that come with a formal deportation. They may be able to return to the U.S. sooner and through more available legal channels than someone with a removal order.16Department of Justice. Information on Voluntary Departure
To qualify for voluntary departure at the end of removal proceedings, the person must have been physically present in the U.S. for at least one year before the Notice to Appear was served and must have maintained good moral character for at least five years before applying. The judge can grant up to 60 days to leave.17Office of the Law Revision Counsel. 8 USC 1229c – Voluntary Departure The trade-off is that the person gives up the right to fight the case further.
Appealing a Removal Order
If an immigration judge orders removal, the person can appeal to the Board of Immigration Appeals (BIA). The appeal is filed on Form EOIR-26. Fee waivers are available for people who cannot afford the cost. The appeal must be filed within the deadline set by regulation, and proof that a copy was served on the opposing party must be included.18eCFR. 8 CFR 1003.3 – Notice of Appeal
The BIA reviews the immigration judge’s decision for legal and factual errors. If the BIA upholds the removal order, the person may be able to take the case to a federal circuit court of appeals, though judicial review is limited in scope, especially for cases involving criminal grounds. Filing a petition for review does not automatically stop deportation; the person typically needs to request a stay of removal separately.
What a Removal Order Means Afterward
A formal removal order triggers bars that prevent the person from legally returning to the U.S. for years or decades. The length depends on how the person was removed and their criminal history.
- Five-year bar for someone removed upon arrival under expedited removal or after a hearing as an arriving alien, with no aggravated felony conviction.
- Ten-year bar for someone removed under any other provision of law, or who left the country while a removal order was outstanding.
- Twenty-year bar for anyone who has been removed two or more times.
- Permanent bar for anyone removed who also has an aggravated felony conviction. A separate permanent bar applies to anyone who re-enters or attempts to re-enter without authorization after having been unlawfully present for more than one year or after being previously removed.
Even the permanent bar is not always truly permanent. A person subject to the permanent bar for unauthorized re-entry after removal can apply for the Secretary of Homeland Security’s consent to reapply for admission using Form I-212, but only after remaining outside the U.S. for at least 10 years.19Department of State Foreign Affairs Manual. 9 FAM 302.11 – Ineligibility Based on Previous Removal and Unlawful Presence in the United States – INA 212(a)(9) Consent is discretionary.
If someone who was previously deported re-enters the U.S. without authorization, the government does not have to start new removal proceedings from scratch. It can reinstate the original removal order, and the person can be removed again quickly without a new hearing before an immigration judge. Attempting to re-enter after deportation can also result in federal criminal charges carrying significant prison time.