Bringing back deported aliens

A number of aliens who have been deported or their relatives have asked how the alien can return to the United States.

After an alien is ordered removed, the alien’s lawful permanent resident status (LPR) and green card are revoked.

Consequently, it is fundamental that the alien must have a bridge to America so that the alien can return. There must be an approved visa petition for the alien by a qualified relative. Furthermore, the alien must not be inadmissible. If a waiver is available to cure the ground of inadmissibility, the alien must apply for a waiver and it must be approved before a visa can be issued. It is very difficult but doable.

With respect to aliens who have been deported after losing their removal proceedings in the Board of Immigration Appeals but who win in the Court of Appeals or the Supreme Court, they may be brought back to the United States.

A directive (No. 1106.1, Feb. 24, 2012)) issued by John Morton, Director of the U.S. Immigration and Customs Enforcement (ICE) describes the policy and procedure for facilitating the return of such aliens.

It states: “Absent extraordinary circumstances, if an alien who prevails before the U.S. Supreme Court or a U.S. court of appeals was removed while his or her PFR (Petition for Review) was pending, ICE will facilitate the alien’s return to the United States if either the court’s decision restores the alien to lawful permanent resident (LPR) status, or the alien’s presence is necessary for continued administrative removal proceedings.”

The Directive further states that “if, following remand by the court to the Executive Office for Immigration Review (EOIR), an alien whose PFR was granted and who was not returned to the United States is granted relief by the EOIR or the Department of Homeland Security (DHS) allowing him or her to reside in the United States lawfully, ICE will facilitate the alien’s return to the United States.”

No right or benefit created

Here’s the rub. “The Directive is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.”

So how can the alien enforce the directive if it does not create any right or benefit?

Apparently, the return of the alien is discretionary with ICE.

Furthermore, the Directive does not go into detail on whom to contact to obtain the return of the deported alien.

Automatic stay of removal in the good old days

In the good old days, when an alien appeals an adverse decision of the Board of Immigration Appeals to a court of appeals, the decision is automatically stayed during the appeal. Subsequent and obviously anti-alien laws eliminated the automatic stay provision of the old law. Now, an alien must obtain a stay of removal from the Court of Appeals, otherwise ICE will remove the alien pursuant to the BIA decision. It is possible but difficult to obtain a stay of removal. It is discretionary.

The alien must satisfy the following requirements: (1) strong showing that the alien is likely to succeed on the merits, (2) irreparable harm to the alien absent a stay, (3) issuance of a stay will not substantially injure other parties interested in the case, and (4) public interest favors a stay. See Nken v. Holder, 556 U.S. 418 (2009). See also Leiva-Perez v. Holder, 640 F.3d 962 (9th Cir. 2011).

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1^st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30 a.m. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)