Organization of Immigration Agencies
After September 11, 2001, Congress reorganized the government’s immigration system under the newly minted Department of Homeland Security. The Immigration and Naturalization Service (INS) was divided into three different parts: the United States Citizenship and Immigration Service (USCIS), the Customs and Border Protection (CBP), and the Immigration and Customs Enforcement (ICE). The USCIS is an agency that adjudicates and processes affirmative immigrant, nonimmigrant applications, citizenship applications, and asylum applications. The CBP not only enforces immigration laws primarily at the nation’s borders and ports of entry, but also enforces drug laws and is in charge of keeping terrorists and illegal weapons outside of the United States. Part of ICE’s duty, much like CBP, is to safeguard the nation from criminal networks. Additionally, ICE enforces immigration laws, arrests individuals in violation of immigration laws, and is involved in worksite enforcement raids.
The Executive Office for Immigration Review (EOIR), created in 1983 under the Department of Justice, is an administrative court entrusted with enforcing immigration laws. It is under the EOIR where noncitizens in removal, or deportation, proceedings can argue their cases before an immigration judge. Unlike individuals defending against criminal charges, non-citizens have no right to free legal assistance in removal proceedings, but do have a right to hire and be represented by the attorney of their choice.
TERMS AND CONCEPTS
A person who is not a citizen of the United States. This term encompasses all other individuals, including legal permanent residents, visa holders, and undocumented individuals.
An immigrant visa is a visa that allows a foreign national to enter the United States legally for permanent residence in the United States. There are different ways to obtain an immigrant visa, but most often individuals either obtain them through employment petitions or through family petitions.
A nonimmigrant visa allows a noncitizen to enter the United States legally for a temporary period of time. There are many kinds of nonimmigrant visas that allow foreign nationals to enter the United States different reasons. For example, the B-2 visa is for tourists, while the F-1 visa is for students.
Lawful Permanent Resident
A lawful permanent resident (also known as a green card holder) is a noncitizen who has obtained an immigration visa to permanently and lawfully reside in the United States. A lawful permanent resident (LPR) may work where they choose (except some federal jobs reserved for U.S. Citizens) and may only be compelled to leave the country if ordered removed. An LPR can travel in and out of the Untied States and, after a certain number of years, can apply to naturalize their status to that of a U.S. Citizen. The number of years that an LPR must wait to apply is between 1 and 5 years, depends upon how the LPR status was obtained.
Adjustment of Status
This is the process by which an individual becomes a permanent resident while they are inside the country. This process is not open to everyone, and often people must consular process in order to obtain their immigrant visas. A person will not be granted adjustment of status if they are inadmissible to enter the United States unless a waiver is available and granted to overcome the particular ground if inadmissibility.
This is the process by which an individual becomes a lawful permanent resident by going to a United States Consulate abroad. A person will not be granted an immigrant visa if they are inadmissible to enter the United States.
This is the process by which foreign born individuals become United States Citizens. Individuals must first become legal permanent residents of the United States before they can apply for naturalization. A United States citizen, unlike a Legal Permanent Resident, can vote in elections, has more employment opportunities and can file petitions to legalize more family members than an LPR. Most importantly, a United States citizen cannot be deported. See, “Naturalization” under the Immigration Law Basics tab for more information.
A person who is asking to be legally admitted into the United States is seeking “admission” to the country. There are a number of reasons why a person might be determined “inadmissible” and therefore ineligible for legal admission. For example, individuals who have been convicted of certain crimes, have certain health issues, present security concerns, are likely to not be able to survive without public benefits, or have a negative immigration history are inadmissible. The complete list is available at section 212(a) of the Immigration and Nationality Act (INA) and the federal regulations at 8 CFR §1182(a).
A noncitizen who entered the United States without detection by a United States official and who does not have permission to be in the country, is subject to the grounds of “inadmissiblity” even if they are physically present in the United States.
A person who is deemed “inadmissible” may be barred from ever obtaining legal status in the United States or may only be barred for a certain number of years. In some cases, the individual can apply for a waiver of inadmissibility to overcome the bar to admission.
There are waivers available for certain, but not all, grounds of deportability and inadmissibility. Well prepared waivers often involve providing immigration with extensive documentation and evidence demonstrating that the noncitizen’s U.S. citizen or legal permanent resident immediate family member will suffer extreme hardship if they are not admitted to or allowed to remain in the United States.
Waivers are available for certain inadmissibility grounds including health-related grounds, certain criminal grounds, for certain battered women and children, violations of immigration law, and for those individuals previously removed.
A “removal proceeding” is the general term that is used to refer to the immigration court proceedings in which the court decides whether a noncitizen is removed from the country or not. It is colloquially known as a “deportation” proceeding, but this term is not correct for all individuals. See “deportation” and “removal.”
“Deportation” vs. “Removal”
The term “deportation” is colloquially used to refer to a situation where a person is physically removed from the United States after a proceeding in which the person is established to have no right to remain in the United States. In 2001, the terms “deportation” was released with “removal.”
Judicial Removal Order
An order of removal is the order from an immigration judge ordering a non-citizen to be removed from the country. If the non-citizen had previously been granted Lawful Permanent Resident Status, a final removal order terminates the LPR’s status.
Expedited (Summary) Removal Order
An expedited removal is a special removal order that may be given to noncitizens who are caught at the border. Unlike an judicial removal order, an expedited removal order is issued by an immigration official. In addition, there is no statutory right to an attorney (paid by the non-citizen or paid by the public) during these proceedings. There are very limited forms of review once an expedited removal order has been issued. Typically, the order is issued because (1) the non-citizen had no authorization to enter the country (2) the non-citizen attempted to enter the country by misrepresentation about their immigration status or (3) the non-citizen attempted to enter the U.S. by falsely claiming that the person is a U.S. Citizen.
An immigration judge can grant a noncitizen in removal proceedings voluntary departure in lieu of an order of removal. Some people choose to leave the country under an order of voluntary departure rather than a removal order to avoid adverse immigration consequences arising from a removal order. There are certain requirements a person must meet to be granted voluntary departure and the law limits the amount of time a person will be granted to leave the country to between 60 and 120 days depending upon when the request for voluntary is made. NOTE: there are severe consequences for failing to comply with an order of voluntary departure. For many people, there is little to no benefit to seeking voluntary departure.
Most people who are arrested by immigration officials may request release upon payment of a bond and showing that they are neither a flight risk nor a danger to the community. However, some people are not eligible to request to be released from detention. This is typically due to a criminal record.