Immigration Violations and Reentry Restrictions: Understanding Unlawful Presence and Removal Orders

Immigration violations and reentry restrictions are complex and often misunderstood aspects of the United States immigration system. For both practitioners and immigrants, it is crucial to have a thorough understanding of unlawful presence and removal orders in order to navigate the system effectively. In this article, we will discuss the basics of these two concepts and their importance in the immigration process.

Understanding Unlawful Presence

Unlawful presence refers to the period of time that an individual stays in the United States without legal authorization. This can occur in a variety of ways, such as overstaying a visa, entering the country without proper documentation, or violating the terms of a visa. Unlawful presence is a civil violation, not a criminal offense, and it can have serious consequences for individuals seeking to enter or remain in the United States.

Consequences of Unlawful Presence

The consequences of unlawful presence can vary depending on the length of time an individual has been in the United States without legal authorization. Under the Immigration and Nationality Act (INA), individuals who accrue more than 180 days of unlawful presence and then leave the country may face a three-year bar from reentering the United States. If an individual accrues more than one year of unlawful presence and then leaves the country, they may face a ten-year bar from reentry.

These bars can have a significant impact on an individual’s ability to obtain a visa or green card in the future. In some cases, individuals may be eligible for a waiver of these bars, but it is important to consult with an experienced immigration attorney to determine the best course of action.

Exceptions to Unlawful Presence

There are certain situations in which unlawful presence does not accrue. For example, individuals under the age of 18, individuals in Deferred Action for Childhood Arrivals (DACA) status, and individuals with pending asylum applications are not considered to be accruing unlawful presence. Additionally, individuals who are in the process of adjusting their status to become lawful permanent residents are also not accruing unlawful presence.

Understanding Removal Orders

A removal order, also known as a deportation order, is a legal document issued by the U.S. government that orders an individual to leave the country. Removal orders can be issued for a variety of reasons, including unlawful presence, criminal convictions, or immigration violations. It is important to note that a removal order can have serious consequences for an individual’s ability to enter or remain in the United States.

Types of Removal Orders

There are two types of removal orders: expedited removal and formal removal. Expedited removal is used for individuals who are apprehended at the border or within 100 miles of the border and have been in the country for less than two years. In these cases, individuals may be removed without a hearing before an immigration judge.

Formal removal, on the other hand, is used for individuals who have been in the country for more than two years or who are apprehended more than 100 miles from the border. In these cases, individuals are entitled to a hearing before an immigration judge and have the opportunity to present a defense against the removal order.

Consequences of Removal Orders

Similar to unlawful presence, a removal order can have serious consequences for an individual’s ability to enter or remain in the United States. In addition to being barred from reentry for a certain period of time, individuals who have been ordered removed may also face difficulties in obtaining visas or green cards in the future. It is important to consult with an experienced immigration attorney if you have been issued a removal order.

Importance for Practitioners and Immigrants

For practitioners, having a thorough understanding of unlawful presence and removal orders is crucial in order to effectively represent their clients. Immigration law is complex and constantly changing, and practitioners must stay up-to-date on the latest developments in order to provide the best possible representation.

For immigrants, understanding unlawful presence and removal orders is equally important. By understanding the potential consequences of their actions, individuals can make informed decisions about their immigration status and avoid unintentionally accruing unlawful presence or being issued a removal order.

Conclusion

In conclusion, immigration violations and reentry restrictions can have serious consequences for both practitioners and immigrants. Understanding the basics of unlawful presence and removal orders is crucial in navigating the immigration system and avoiding potential pitfalls. It is important for both practitioners and immigrants to stay informed and seek the guidance of experienced immigration attorneys when facing these complex issues.

FAQs

Q: Can I apply for a waiver of the three-year or ten-year bar for unlawful presence?
A: Yes, in certain circumstances individuals may be eligible for a waiver of the bars. It is important to consult with an experienced immigration attorney to determine your eligibility.

Q: Can I appeal a removal order?
A: Yes, individuals who have been issued a removal order have the right to appeal the decision. It is important to act quickly and seek the guidance of an experienced immigration attorney.

Q: Can I be deported for a minor immigration violation?
A: Yes, even minor immigration violations can result in a removal order. It is important to consult with an experienced immigration attorney to determine the best course of action.