By Atty. Cynthia Exner
Some people enter the US by crossing the border illegally between Mexico and the US. Some are caught by US border patrol and placed in immigration court proceedings. Some are put in jail, others are sent back across the border and others are released on bond or a promise to appear.
Some people think that because they were stopped many years ago, that the immigration court case just “goes away.” That is false.
If a person appeared in immigration court, there may be an outstanding Order of Removal/Deportation. This means that the immigration judge may have ordered the person removed/deported from the US. If the person never left the US, then if US Citizenship and Immigration Services (USCIS) ever catches them, they can be removed/deported immediately. Some people marry a US citizen, or are sponsored by their legal parents or brothers/sisters, or employers many years later, and they find out about the old Order of Removal/Deportation when they attend their personal interview at the local USCIS office. The USCIS can take them into custody and remove/deport them right from the personal interview!
For those that never attended their old immigration court hearing, the immigration judge may have ordered them removed/deported in absentia. This means that the immigration judge entered an order against them, even though they were absent from the court!
It is very dangerous to have any outstanding Order of Removal/Deportation. The Order remains in effect, and never just “goes away,” until the person leaves the US and remains outside the US generally for five years. It is important to always attend immigration court.
There are waivers available for certain old orders of removal/deportation, but it is important to file for the waiver before USCIS catches, or takes the person into custody. Sometimes an old court case must be reopened before the immigration court. Once a case is reopened, the immigration court could decide to administratively close the case and send the case back to USCIS for adjudication.
There is no waiver of an In Absentia Order of Removal/Deportation, so this type of order must be reopened, or the person could be required to remain outside the US for five years before obtaining permanent resident status.
If someone enters the US illegally without a visa, is caught and placed in proceedings, and later marries a US citizen, he/she DOES NOT qualify to obtain permanent resident status inside the US and does not qualify to file a Family Unity Waiver because of the old court case. The USC files a petition. When approved, it is forwarded to the National Visa Center (NVC) for further processing. The NVC collects all documentation for the US consulate, which schedules the personal interview overseas. The foreign spouse attends the consular interview, is DENIED and then is permitted to file two waivers, one for unlawful presence and one for the old removal/deportation case. When approved, he/she can return to the US as a permanent resident.
Cynthia R. Exner is an immigration attorney at the Danbury office of the Immigration Law Offices of Cynthia R. Exner, 270 Main Street, Danbury, CT. If you have any questions relating to this topic, you can contact Attorney Exner at 203-830-4045 or by email at firstname.lastname@example.org.