(Authors: Jonathan Wasden & Justin Rivera, Immigration Attorneys)
On October 22, 2024, the U.S. Department of Homeland Security (DHS) used a chartered flight to repatriate Indian nationals who lacked a legal basis to remain in the United States. This marks a continued effort by DHS to control illegal immigration and enforce repatriations. The process reflects ongoing cooperation between the U.S. and Indian governments aimed at managing migration and ensuring adherence to legal immigration pathways.
Unauthorized presence in the United States has become a topic of growing concern, as the U.S. Department of Homeland Security (DHS) continues to enforce immigration laws through regular deportation flights. But what exactly makes staying in the U.S. without authorization illegal, how does DHS evaluate cases, and what legal options exist for those with compelling circumstances?
Key Takeaways:
- DHS Operations: The chartered flight on October 22 is part of a series of international deportation efforts targeting individuals without legal status.
- Cooperation with India: The U.S. and Indian governments are working together to reduce irregular migration and improve avenues for lawful immigration.
- Increased Deportations: Over the past year, the U.S. has ramped up deportations, conducting over 495 international removal flights since June 2024, affecting nationals from various countries, including India.
- Warning to Migrants: DHS officials emphasize that migrants should not rely on smugglers’ misinformation and should pursue only lawful immigration channels.
What Constitutes an “Illegal” Stay in the U.S.?
An “illegal” or “unauthorized” stay in the U.S. refers to remaining in the country without lawful status. This could occur due to overstaying a visa, entering without inspection (i.e., unauthorized crossing), or violating the terms of a visa. According to the U.S. Immigration and Nationality Act (INA), individuals in these situations are subject to removal unless they qualify for a specific form of legal relief.
How USCIS and DHS Review Immigration Profiles
The U.S. Citizenship and Immigration Services (USCIS) and DHS conduct comprehensive checks on individuals in the U.S. based on visa history, criminal records, and whether any other violations have occurred. When reviewing a case for deportation, USCIS and DHS look at factors such as:
- Visa Status and Overstays: A person’s visa history, including the length and nature of any overstay, is critical. Overstays are a primary reason individuals fall out of legal status.
- Employment Violations: Working without proper authorization can be grounds for deportation, as it violates visa terms.
- Criminal History: Certain criminal offenses, including aggravated felonies and specific misdemeanors, can make individuals subject to removal.
- Previous Immigration Violations: Those with prior deportation orders or repeat violations may face stricter scrutiny.
DHS and ICE’s Immigration Enforcement Role
ICE and DHS are responsible for identifying and removing individuals without legal grounds to remain in the U.S. Repatriation flights, like the recent one to India, are conducted through partnerships with other countries to streamline deportations and prevent unlawful re-entries.
DHS utilizes repatriation as a tool to deter irregular migration while working with the Justice Department to uphold migrant rights during immigration proceedings. For those in deportation proceedings, DHS ensures access to legal pathways, including claims for relief, in accordance with U.S. law and international obligations.
Grounds for Deportation by DHS
The Department of Homeland Security, through agencies like Immigration and Customs Enforcement (ICE), deports individuals who do not meet legal requirements to stay in the U.S. Some common grounds include:
- Unauthorized Entry: Entering the country without inspection or proper documentation is unlawful and can lead to expedited removal.
- Overstaying a Visa: Remaining in the U.S. beyond a visa’s expiration date without applying for a change or extension is a violation that can result in deportation.
- Employment Without Authorization: Accepting employment while on a tourist or student visa can lead to removal if discovered.
- Violation of Criminal Laws: Offenses involving moral turpitude or specific aggravated felonies are deportable offenses under U.S. immigration law.
Legal Options for Those with Genuine Claims
If an individual facing deportation has a strong case, certain legal options might be available, which can help them remain in the U.S. These include:
- Asylum or Withholding of Removal: If a person faces persecution in their home country, they may apply for asylum, which protects individuals based on race, religion, nationality, political opinion, or membership in certain social groups.
- Cancellation of Removal: This relief is available to those who have resided in the U.S. for a long time and meet specific criteria, including a clean criminal record and proof of hardship to a qualifying relative if deported.
- Family-based Adjustments: U.S. citizens and legal permanent residents can sometimes petition for close family members, which may adjust their status if they qualify.
- Temporary Protected Status (TPS): For nationals of certain countries experiencing war or natural disaster, TPS can protect against deportation temporarily.
- Prosecutorial Discretion: ICE may exercise discretion to prioritize certain removals over others, potentially sparing those who contribute to their communities or have family ties in the U.S.
Conclusion
Remaining in the U.S. without a legal basis can trigger deportation processes, but those with legitimate claims can explore options with immigration attorneys. A skilled attorney can help build a defense, seek relief, and ensure the individual’s rights are respected throughout the process.
FAQs
Q. What is the difference between overstaying a visa and entering without inspection?
Overstaying occurs when someone remains beyond their visa’s expiration date, while entering without inspection means entering the U.S. unlawfully without a visa.
Q. Can someone be deported if they have committed a minor crime?
Certain minor crimes may not result in deportation, but specific offenses classified as deportable can still lead to removal proceedings.
Q. How can family ties in the U.S. affect deportation proceedings?
Close family ties may be considered in certain relief applications, like cancellation of removal, especially if deportation would result in hardship to a U.S. citizen relative.
Q. What happens to individuals who seek asylum?
Asylum seekers undergo a credible fear interview and present their case in immigration court, where an immigration judge decides on their eligibility.
Q. Is legal representation necessary in deportation cases?
Yes, an attorney can help individuals navigate complex legal procedures, present evidence, and argue for relief based on eligibility.
Q. Can someone apply for Temporary Protected Status (TPS) during deportation proceedings?
If they qualify, individuals may apply for TPS, which could halt removal temporarily depending on their country’s TPS designation.