WHAT IS A FINAL ORDER OF REMOVAL
§ 1241.1 Final order of removal.
Section 1241.1, states that:
Except as otherwise required by section 242(c) of the Act for the specific purposes of that section, an order of deportation, including an alternate order of deportation coupled with an order of voluntary departure, made by the immigration judge in proceedings under 8 CFR part 1240 shall become final upon dismissal of an appeal by the Board of Immigration Appeals, upon waiver of appeal, or upon expiration of the time allotted for an appeal when no appeal is taken; or, if such an order is issued by the Board or approved by the Board upon certification, it shall be final as of the date of the Board's decision.
Simply put, an order of removal made by the immigration judge at the conclusion of proceedings under section 240 of the Act shall become final:
(a) Upon dismissal of an appeal by the Board of Immigration Appeals;
(b) Upon waiver of appeal by the respondent;
(c) Upon expiration of the time allotted for an appeal if the respondent does not file an appeal within that time;
(d) If certified to the Board or Attorney General, upon the date of the subsequent decision ordering removal;
(e) If an immigration judge orders an alien removed in the alien's absence, immediately upon entry of such order; or
(f) If an immigration judge issues an alternate order of removal in connection with a grant of voluntary departure, upon overstay of the voluntary departure period, or upon the failure to post a required voluntary departure bond within 5 business days. If the respondent has filed a timely appeal with the Board, the order shall become final upon an order of removal by the Board or the Attorney General, or upon overstay of the voluntary departure period granted or reinstated by the Board or the Attorney General. (Revised effective 1/20/09; 73 FR 76927 )
Therefore, ICE should not enforce an Order of Removal until it is final, which may depend on the circumstances of your specific case. CAVEAT: The scenarios explained here do not address expedited removal orders executed at or near US physical borders.)
Can the 30-day Window for Appeal Affects Status of Removal Order?
YES. If you reserved your right to appeal at the end of your removal hearing, then there is an automatic 30-day "stay" on the Order of Removal to give you time to file a Notice of Appeal. This means that ICE is not allowed to remove you from the U.S. during this time. If you were not in detention, you are required to keep the Immigration Court informed of any change of address. If you do not appeal within 30 days, then the Order of Removal will become final.
On the other hand, if you do not reserve your right to appeal, then the Order of Removal is final on the very date the Immigration Judge enter it. In that case, ICE may take you into custody immediately after your removal hearing. Therefore, it is VERY important to always reserve the right to appeal (even if you probably will not do so) so that you have time to prepare to leave the United States.
After an Order of Removal Becomes Final
For whatever reason, as explained above, your Order of Removal becomes final, then ICE is supposed to deport you within 90 days, although due to limited resources and higher priorities, it does not always start the process until much later. If you have not been notified by ICE, you have no specific duty to do anything just yet, as it is up to ICE to begin the removal process.
For individuals that are not in ICE custody, ICE will send what is known as a "Bag and Baggage" letter (or Form I-166) demanding that you report to a local ICE facility at a time and date. You will be told to bring your passport or other travel documents with you, and you will be allowed a small piece of luggage to carry personal items. Basically, this is a letter asking you to turn yourself in so that you can be deported.
At this point, you have a legal duty to report for removal as directed.
Now, if you report as directed with your documents and baggage, then you will be taken into custody (or detained) until the government arranges to send you back to your home country. For those countries with many deportees, such as Mexico, arrangements are done quickly, and mass deportations take place several times each week. If you are from a country that does not have diplomatic relations with the U.S., travel arrangements could take much longer.
So, if you are from a country that has no diplomatic ties with the US government, or your country is not cooperative in issuing the appropriate travel document, then you should seek an experienced immigration attorney to make sure ICE does not prolong your detention.
Because the US Supreme Court in Zadvydas v. Davis amends the custody review process governing the detention of aliens who are the subject of a final order of removal, deportation or exclusion. The decision stated that the post-removal-period detention statute, read in light of the Constitution's demands, implicitly limits an alien's detention to a period reasonably necessary to bring about that alien's removal from the United States, and does not permit indefinite detention. Pp. 8-19. Simply put, 180 days (6 months).
The court held that section 2241 habeas proceedings are available as a forum for statutory and constitutional challenges to post-removal-period detention. The statutory changes in the immigration law left habeas untouched as the basic method for obtaining review of continued custody after a deportation order becomes final. Pp. 6-8.
A self-deportation is a viable option
As scary as it may sound, you do not have to wait for the ICE officers to take you into custody to comply with the terms of a removal order. If your Order of Removal became final, and you decided to leave the country on your own initiative, that departure from the United States is deemed to "execute" the Order of Removal.
Therefore, if you leave the U.S. on your own, you will be considered "deported" as of that date. Some people choose to do this to avoid being detained by ICE, and to have control over their own travel plans and which items they can bring along with them. Keep in mind that with this option, you will have to cover your own travel expenses and arrangements. Also, you should send evidence of your departure to ICE so they know that you have left.
Consequences of Not Reporting to ICE as Scheduled
As discussed above, if you decided to ignore the "Bag and Baggage" letter, ICE will refer your file to the fugitive unit. Their primary job is to track down and arrest those noncitizens who fail to report for removal. ICE agents could arrest you at your home, work, or school at any time. They often come in the middle of the night, when you are expected to be asleep at your home.
If you are arrested, you will be kept in custody (detained) until travel arrangements can be made. Once you are listed as a fugitive, this information may also reach local law enforcement, who may share any information about your whereabouts with ICE. For example, if the police stop you for even a minor traffic offense, you may be arrested and held so that ICE can take you into custody.
I have a Final Order of Removal, but I am married to a US citizen spouse or I have a US citizen son or daughter who is 21 years of age.
In this scenario, the first step is to have your US citizen spouse, or US son/daughter to file a Form I-130 petition on your behalf. This application must be filed with USCIS. Once USCIS adjudicated your petition and approved the form, the foreign national (would-be deportee) should either try to adjust their status in the USA or leave to consular processing at their home country depending on the circumstances of your case.
Can ICE Deport me even if I have a US wife/children?
The short answer is yes if you have a final order of removal. Having family ties in the US is not a defense against deportation. Nonetheless, you may file an application with ICE on Form I-246 to stay your deportation. It is within ICE's sole discretion to stay your removal. If granted, you may remain in the US but that does not give you any permanent resident status (green card).
However, if you are a beneficiary of an approved I-130 petition, and you are considered an immediate relative of a US citizen (spouse, parent, child (under 21)), you may be eligible to adjust your status while in the USA.
Can I get Green Card while in the USA with a Deportation Order?
It depends. That is the honest answer to this question. The law allows you to file one motion to reopen your case within 90 days of your final administrative order of removal. See section 1003.23 of the Act. In this case, it will be much easier to reopen your case and allow you to adjust your status to a lawful permanent resident in the US without the need to leave the country.
Because most do not have the opportunity to file this motion within the 90 days period, the law states that you cannot file a motion to reopen unless if you fall under the exception. You will need to talk to an experienced immigration attorney to help you navigate this nightmare.
I have a Final Order of Removal, and I cannot get Green Card in the USA. What is next?
As discussed earlier, if for whatever legal reason you are unable to adjust your status while in the USA, you may still be eligible for a green card through consular processing. Assuming you are a beneficiary of an approved petition, but are unable to reopen your case to adjust your status in the USA, leaving the US on your own merit to consular processing at your home country could be your best option. I know this sounds scary to most people, Africans, but it is a viable option.
There are some things you need to be aware of before leaving the US. If your only crime in the US is because you overstayed your visa or legal status or entered without inspection, if you leave the US, you may be subjected to the 3 or 10 years bar because of your unlawful presence in the US. In addition, your departure from the US will trigger a 10 years bar because of the removal order.
However, there is good news! Under President Obama, a law was enacted to help address this situation. Certain immigrant visa applicants who are relatives of US citizens or Lawful Permanent Residents may request a provisional unlawful presence waiver while in the USA. If USCIS approved your provisional waiver, it cures any unlawful presence you may have in the USA. This means that instead of waiting 3 or 3 years outside the USA, your departure may be limited to weeks or a month to get your visa at the consular office.
Again, I-601A, provisional unlawful presence waiver, does not cure the 10 years bar associated with your deportation. So, for folks whose departure executed the removal order, the consular office will still deny you a visa. But if you are a relative of your US citizen or LPR, instead of waiting 10 years to pass by, you can apply for a waiver to be reunited with your family sooner. Form I-601, Application for Waiver of Grounds of Inadmissibility, serves this purpose. Even folks with criminal and other issues may use this waiver. Again, because of the backlog with USCIS, this application can take 6 to 9 months to be adjudicated. Regardless, that is far better than waiting for 10 years.
In conclusion, sometimes, your best option as an immigrant is to go home. After all, all gone is not all lost.
If you need further information regarding this article or any other immigration issues, please kindly contact us or call (608) 420-4033. Our experienced immigration attorney, Sarjo Barrow, Esq. has handled these scenarios with success. We have helped individuals reopen their cases and adjust their status to that of a lawful permanent resident. Also, we have helped individuals depart the USA and successfully consular process back to the USA.