Deportation is the removal, or forced return to a home country, of an individual by immigration authorities after a hearing. This process is overseen by the Department of Homeland Security and its law enforcement division, Immigration and Customs Enforcement (ICE). It can start when someone enters the United States without permission or overstays their visa, or when they are found to have committed certain crimes, including aggravated felonies.
If the government decides to pursue deportation, it must notify the individual and schedule a removal hearing. The proceedings are a lengthy process and can result in the permanent loss of one’s ability to live, work, or visit the U.S. Individuals who are arrested on criminal charges or who pose a threat to public safety may be placed in expedited removal proceedings, meaning they can be removed from the country without a judge’s review if they are within 100 miles of the U.S. border and have been in the country for two weeks or less. In these cases, individuals don’t have the right to a lawyer provided at government expense and must represent themselves.
The decision to remove a person from the country can be appealed to the Board of Immigration Appeals. In addition, a person can ask for a stay of deportation or removal, which will allow them to remain in the country until their case is decided by a judge. People who have legal rights to remain in the country, such as lawful permanent residents or holders of visas such as F-1 student visas and K-1 fiance(e) visas, can file a request for relief from removal.
Immigration Judges hear the cases of non-citizens and determine how the case should proceed. The first hearing is a master calendar hearing where the judge verifies the facts of the case from the Notice to Appear and assesses whether the respondent has any basis on which they can claim eligibility for relief from removal.
It can take anywhere from 3-6 months to get a hearing for non-detained individuals and shorter time periods for those who are being held in custody. The length of time can be affected by a number of factors, such as the location of the court and how many immigration judges are at each facility. The current administration has pressured immigration judges to complete cases more quickly, which means that continuances – requests to delay the case – are less likely to be granted.
Ultimately, it’s the duty of a government to make sure that the harms it inflicts through deportation are proportionate to the cause it pursues. This involves a two-part evaluation—first, establishing that the deportation is a necessary means of accomplishing the state’s purpose and, second, evaluating how well the actual implementation of the deportation measures inflicts those harms.
In our view, the best way to do this is by ensuring that deportation enforcement always operates in a context of fundamental human rights – because that’s the only way to ensure that the harms inflicted are not excessive.