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Undocumented Immigrants

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018

Who is an undocumented immigrant?

There is no official definition for the term "undocumented immigrant." For our purposes, we use the term "undocumented immigrant" to refer to those who have illegally entered into the United States, without inspection, and live here.

Some literature describe "undocumented immigrants" as two groups of individuals: (1) those that have illegally entered into the United States without inspection and live here, and (2) those that have lawfully entered the United States and, after the expiration of their status, have stayed here, though illegally.  The second group, however, can be best defined as "out-of-status" individuals, i.e., those who once held a lawful nonimmigrant status and now are without one.  The individuals in the first group are sometimes referred to as "illegal aliens," even though no such category is defined in law and obviously a human being cannot be "illegal," regardless of what their conduct may be.

What consequences would an undocumented immigrant face, afetr being arrested by ICE?

If you are an undocumented immigrant and are arrested by ICE, see Arrest by ICE.  Depending on the circumstances, ICE may detain you. To see who will be detained by ICE, who may be released on bond, and what is the range of bonds, see Release on Bond. To see where you may be detained or how you can find a loved one who has been arrested and detained by ICE, see Detention by ICE.

The next step after arrest or detention is determining the nature of proceedings to which immigration officials may bring against you. Some undocumented immigrants are subject to expedited removal, which offers limited protection and possible defenses. Other undocumented immigrants will be placed in a regular removal proceeding.

There is also an expedited removal proceeding for aggravated felons.

If a finalized removal (deportation) order already exists against the undocumented immigrant, ICE may simply enforce that order and deport the undocumented immigrant without any kind of new removal proceeding.

If you came into the United States through a port of entry, were admitted into the country after inspection, have not tried to hide, and have not committed a serious criminal offense, most likely you will never see an Immigration and Customs Enforcement (ICE) agent. Even if the government decides to deport you, you will receive the Notice to Appear (NTA) in the mail. Otherwise, it may be the case that some day, somewhere, ICE will knock on your door.

Who is subject to expedited Removal?

Two groups of people are subject to expedited removal.

  • Those arriving at a port of entry who are inadmissible because they either have misrepresented themselves as U.S. citizens or lack of required documents.
  • Those apprehended, at a place other than a port of entry, who have not been admitted or paroled into United States and cannot show that they have been continuously and physically present in the United States for at least two (2) years. The DHS, however, has limited its activities to apprehensions within 100 miles of international land borders and within 14 days of arrival into the United States.

There are exceptions. The expedited removal does not apply to permanent residents or those already admitted as asylees or refugees.  In addition, the expedited removal provisions do not apply to “a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry.” INA § 235(b)(1)(F).

How does a removal (deportation) proceeding start?

If the undocumented immigrant qualifies for a regular removal proceeding, the immigration officer will provide them with a Notice to Appear (NTA), which will list the charges and allegations that would support their removal (deportation). The first hearing will be in a few weeks. See Removal Proceedings.  For those who are detained, the first hearing will be scheduled sooner.

What defenses and remedies are available to an undocumented immigrant in a removal proceeding?

For removal proceeding procedures, see Removal Proceedings.

For available defenses and remedies in a regular removal proceeding, see Removal Proceeding Defenses and Remedies for Undocumented Immigrants.

For expedited removal procedure and available defenses and remedies in expedited removal proceedings, see Expedited Removal.

Related Topics:

Removal Proceeding Defenses & Remedies for Undocumented Immigrants

Removal Proceedings

Expedited Removal

Arrest of Undocumented Immigrants by ICE

Detention of Undocumented Immigrants by ICE

Release of Undocumented Immigrants on Bond

Immigration Consequences of Illegal Entry

Criminal & Civil Penalties for Illegal Entry into the United States


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