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Removal: Unless you're a U.S. citizen, you could be deported. Here's how it works

Jim Hacking
From law firm website

Most of us say deportation, but in legal circles, with the government and those who find themselves involved with a case, it's called removal.

The word itself pretty much describes what happens: A person is literally removed from this country for a number of reasons. But how removal works is not necessarily easy to understand or navigate.

And for the general American public, misconceptions about the process abound. Jim Hacking, an immigration attorney with King, Krehbiel, Hellmich, Hacking and Borbonus, LLC, cites three common misperceptions.

"One is that it's fast because it's not fast. It's slow," says Hacking. "Two, I would say that it's consistently applied because it's not. And three, that it's a well-funded operation because it's not."

A February report from Medill, the journalism school at Northwestern University, looks at the rising numbers of deportations over the past 10 years. In 2008, the last year that figures were available from Homeland Security, 359,000 people were deported.

Of those deported in 2008, about one-third were because of criminal activity. The rest were likely discovered to be without papers or denied asylum.

But legal permanent residents can also be deported.

"If you're not a U.S. citizen, you're eligible for removal or deportation," Hacking says.

For legal permanent residents, removal can happen after being convicted with one aggravated felony or two crimes involving moral turpitude, Hacking says.

And often, immigrants don't really know how the deportation system really works.

"For many immigrants, it may as well be like a whole other world," says Kim Allen Murray, managing attorney with the Immigration Law Project with Legal Services of Eastern Missouri. "I think immigrants have an idea that there's this deportation process, but how it actually works and how you navigate through it is very difficult for many immigrants."

Danger zone

Some common reasons for deportation, according to the website of Timothy Wichmer, an immigration attorney with Bernhardt and Wichmer, are as follows:

  • Arriving at a port of entry into the U.S. without valid documents or with previous immigration violations. If this happens, the person can be arrested and removed quickly and this can prevent someone from coming back to the U.S. for many years.
  • Entering the country illegally.
  • Violating lawful status in some way, such as working without permission.
  • Being arrested or convicted on criminal charges.
  • Becoming a public charge within five years of entering the country.

Again, having a green card isn't a guarantee of safety from deportation.
"If you get involved in any kind of trouble with the law, and it could be something as common as a bar fight, that could put you in danger of being deported," Murray says.

And for those who came here illegally or have fallen out of status, Missouri also has a law, Wichmer says, that's essentially a less-famous version of the recent Arizona law. According to HB1549, municipal police and highway patrol can request to see documentation that a person is either a legal permanent resident, has a visa to be here, or is a citizen. It's not a crime to be in the state without the right documentation, but if discovered out of status, those officers can arrest the person and then call ICE.

Next, someone from ICE comes to talk to with the undocumented person. At this point, voluntary removal is usually offered, meaning the person could choose to skip the removal process and go directly home.

If they choose to go through the removal process, they are either allowed to go out on bond or on their own recognizance or kept in custody, depending on their case and background. In St. Louis, the two prisons where people in removal are kept in mandatory detention are Mississippi County Jail or the jail in Montgomery City, Mo., an hour and a half to three hours away.

"It's a pretty dire circumstance," Hacking says. "In Montgomery County, you are housed with the general population. I had a client who was up there who had to had a hepatitis shot because there was an outbreak. She saw all kinds of things."

And mandatory detention can work as a kind of threat to get people to take voluntary removal, he says.

"Mandatory detention is also really a cudgel that the government uses to get people to take what's called voluntary departure. Because immigration takes so long to process someone, even if they're in removal proceedings, this mandatory detention is really a harsh consequence ... I believe they use it to say, 'oh, I'm not going to sit in jail eight months, I'm going to go back to my country,'" Hacking says.

Next, hearings, called master calendar hearings, are scheduled with an immigration judge.

The judge is an employee with the Department of Justice, Hacking says, and there's no guaranteed right to government-paid counsel for the person in removal proceedings.

The date of the first hearing might be several months away, and if there's an appeal after that, several months more.

A way out ... or in ...

There are ways out of deportation.

"The lawful permanent resident, someone with a green card, has greater protection than someone who's never been inspected," Hacking says. "If you came in the country, and even if you came in the country when you were 5 years old and you were never inspected, you can be married to a U.S. citizen and have American-born children and you're still removable."

There's a huge distinction in immigration law, he says, for people who've been inspected, or gone through immigration upon entry into the country, and people who haven't. If a person overstays their visa, for instance, and is married to a U.S. citizen, there are ways to adjust status and avoid deportation.

"But if you've never been inspected and you get detained, you're pretty much assured of going back to your home country," Hacking says.

Also, if the person in removal can prove their leaving would cause exceptional, extremely unusual hardships on their families here, they may be granted the right to stay.

But that's a hard point to prove, Wichmer says.

That's because of three words: exceptional and extremely unusual. So saying that a family couldn't eat, for instance, or pay bills without the earned income of the person in removal proceedings doesn't stop the process. Anyone with family here who is deported would go through the same thing, Wichmer says. And that's not exceptional or extremely unusual.

Removal proceedings can take four months to a year or longer depending on the case and the appeals process. During that time, Wichmer says the person in the process is in an odd position -- now they can't leave the country.

Reforming the law

Those involved in working closely with the immigration system see many areas that need reform.

Stephen Legomsky, a professor at Washington University School of Law, has hammered out the problems and some solutions to one issue in particular in two papers, one for Cornell University and one for Duke University.

He also drafted a bill for the Senate immigration subcommittee, but doubts at this point that any major immigration reform with take place anytime soon.

Among the problems he cites is a lack of judicial independence among immigration judges and a chilling, "emerging fear that ruling against the government in a deportation case can be hazardous to one's job," Legomsky writes in the Cornell paper.

To the issue of judicial independence, he offers several solutions, from removing immigration judges from the Justice Department to creating a new and independent immigration court.

Murray says mostly she's had positive experiences with the judicial process.

One challenge that she sees, however, is the number of people in deportation without counsel. That's because there's no right to a government-funded lawyer.

"I think it's a challenge for the courts because the courts are struggling with so many people on their dockets," she says.

Because Legal Services gets funding from the government, Murray says she can't advocate for specific changes in policy or law without the express written invitation of a senator.

But another challenge she sees is that non-violent immigrants are held in detention with the general criminal population. That often causes people to choose voluntary removal.

Broader changes to the entire immigration system would obviously have an impact on the deportation system. But there may not be much incentive for changes, mostly because those involved aren't U.S. citizens.

"The frustrating thing is that the law doesn't do what anybody wants it to do," Wichmer says.

Currently, he says, the immigration system as a whole doesn't keep people from coming here illegally, it makes people trying to come legally wait sometimes for decades, and often, those who come through the right channels are deported quickly for minor offenses while those who blew right by the system remain.

"It's such a patchwork system and such a lack of accountability," Hacking says. "And I think a lot of it's done in the dark."

Read more from the Beacon

Borderline: Maria came to St. Louis to find opportunity, but her status often left her feeling lost

How do you fix a broken immigration system? Part 2

How do you fix a broken immigration system?

Two immigration lawyers recommend fixes to what they say is a broken system

While immigration causes controversy, two lawyers say most Americans don't know how it really works

This article originally appeared in the St. Louis Beacon.

Kristen Hare