Written by attorney Luis Alberto Guerra

How can a person return to the US after a removal/deportation?

When an alien violates the conditions of his visa (immigrant or non-immigrant) or when an alien breaks certain laws in the United States, he faces removal (or "deportation," the term used by the former Immigration and Naturalization Service, referred to as legacy INS). Before an alien is removed from the U.S., he has the opportunity to appear before an immigration judge and plead his defense or offer reasons why he should not be removed from the U.S. The immigration judge then decides whether or not the alien must leave the U.S. After an alien has been removed from the United States, there are limited circumstances under which he can return. The opportunities available for returning to the U.S. will vary depending on the reason for the removal.

The first step for most aliens attempting to get permission to enter the U.S. after removal is to submit Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal.

Depending on the reason for the removal, the alien will likely also need to submit Form I-601 which is an Application for Waiver of Grounds of Inadmissibility. Because there are many grounds for inadmissibility, the requirements for the waiver will vary depending on the reason the alien was deported. While filing Form I-212 will remove the prior removal restrictions, the Form I-601 is needed to remove the grounds for removal. The most common example is for leaving the U.S. while out of status and the accumulation of unlawful presence. The form should be submitted to the local immigration court where your removal hearing was held. If the alien is applying while he is abroad, he should file this form with the American Consul with whom he submits his visa application. The alien can also apply prior to his departure through removal from the United States with the local office that has jurisdiction over the place of his residence.

Most aliens who are removed from the United States have a set period of time they have to wait before they can reenter the United States. Using Form I-212, an alien can ask permission to enter before the required waiting time is completed. If an alien was removed because of an aggravated felony, he likely has to stay out of the U.S. for 20 years. If he was removed for a lesser charge, he may have to wait 5 or 10 years before applying for a waiver. The severity of the grounds for removal will affect the likelihood of approval for a waiver.

Under federal law (8 U.S.C. § 1325), anyone who enters the Unites States illegally is committing a misdemeanor offense and can be sentenced to a fine or six months in prison. The federal law accompanying § 1325 is 8 U.S.C. § 1326 which makes the offense of reentering, or attempting to reenter the United States after being removed or deported a felony offense. In the latter case, the alien will likely be permanently barred from the United States if he illegally reenters after a prior removal unless he can show credible fear about returning and makes application for asylum.

Applying for admission to the U.S. after removal is a complicated and legally difficult process. It is important that an alien wishing to reenter the U.S. consults with an immigration attorney before submitting an application for permission to enter. Removal is a serious matter and immigration officials will be hesitant to allow someone back into the U.S. when that person has already broken immigration laws. An immigration attorney can offer advice on the best way to improve your chances of approval through proper evidence.

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