In our Ask Visalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.
If you have a question on immigration matters, write [email protected]. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.
1) QUESTION: Is it true that you can only be deported by an immigration judge?
ANSWER: This is a myth. An Immigration Judge can order non-citizens deported. But in 1997 it was ruled that Customs and Border Protection (CBP) officers can too. CBP officers at the border, airports and other ports of entry can issue Expedited Removal orders against someone trying to enter the US without the proper documentation or against someone who lies or uses fraudulent documents when trying to enter the US.
Also, when someone is being held by Immigration and Customs Enforcement (ICE), the officers often will try to get the person (especially those from Mexico) to agree to a Stipulated Removal. Someone who agrees to a stipulated removal gives up their right to go before an immigration judge and agrees to be deported. People sign these because they usually don’t realize what they are signing and think that they are agreeing to go home without being deported. These are often confused with Voluntary Departure orders, which are issued by an Immigration Judge, not by ICE.
But just because someone was denied entry into the US doesn’t necessarily mean that they were issued an order of expedited removal. Sometimes CBP officers will allow someone to withdraw their application for admission and agree to go back home without a removal order, and sometimes CBP officers and ICE officers will just send someone back without going through the formal process of issuing an order for expedited removal or having them sign a stipulated removal order. Sometimes the difference depends on what paperwork the officer did.
Bottom line:
1) If you are ever picked up by immigration, do not sign anything without speaking to your immigration lawyer first, because you are most likely signing a Stipulated Removal order, deporting yourself and giving up any chance you had to get relief from removal from an immigration judge.
2) If you are applying for admission into the US and the CBP officer asks if you would like to withdraw your application for admission, say “yes” (unless you have a legitimate fear of being persecuted, tortured or killed, based on your race, religion, nationality, political opinion, or membership in a particular social group if you are sent back home and you are asking for asylum). When the CBP officer asks if you want to withdraw you application, what they mean is that they are giving you a choice to withdraw your application and go back home rather than being ordered deported by Expedited Removal. Either way you are going home, but if you are allowed to withdraw your application for admission then you do not have a deportation bar from future admissions or visas.
3) If you have been denied entry into the US or sent back home by CBP or ICE, especially since 1997, you should have an immigration attorney request your immigration files from the various government agencies to see if you have been deported.
2) QUESTION: I am a US permanent resident. My green card expired five years ago and I did not renew it, but I have not left the US since it expired. How do I go about fixing this issue?
ANSWER: What you need to do now depends on whether you had a 10-year green card or a conditional 2-year green card.
If you had a 10-year green card then you need to file an application to renew/replace your permanent resident card. Even though your green card expired, your permanent resident status did not expire. You are still a permanent resident, but you need to renew the card so that you can prove that you are a permanent resident.
If you had a 2-year conditional card then you are in a more complicated situation, as you had a requirement to file an application to request that the condition be removed from your residence during the 90 days before green card expired. Failure to do this could have resulted in USCIS revoking your permanent residence. Usually this situation is fixable, but you definitely should hire an immigration lawyer to assist you in correcting the situation.
Once the situation with your green card has been fixed, you should also look into whether you are eligible to apply for naturalization to become a US citizen. That way you don’t have to worry about remembering to renew your green card in another 10 years.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.