By Brian Figeroux, Esq. 

The United States offers various pathways for foreign nationals to reside within its borders, notably through visas and Green Cards (lawful permanent residency). However, holding such status does not render one immune from deportation (removal) proceedings. Both visa holders and Green Card holders can be subject to deportation under specific circumstances outlined in federal immigration laws. This article delves into the evidentiary standards and legal grounds that the U.S. government must meet to initiate and sustain deportation actions against these individuals.​

Legal Framework Governing Deportation

The Immigration and Nationality Act (INA) serves as the cornerstone of U.S. immigration law, detailing the grounds upon which non-citizens may be deported. Specifically, Section 237 of the INA (8 U.S.C. § 1227) enumerates the classes of deportable aliens, providing the legal basis for removal proceedings.​ 

Grounds for Deportation

1. Inadmissibility at Time of Entry or Adjustment of Status

An individual found to have been inadmissible at the time of entry or when adjusting their status to that of a lawful permanent resident can be deported. This includes cases where fraudulent information was provided during the application process. ​ 

2. Criminal Convictions

Certain criminal offenses can render a non-citizen deportable:​

• Crimes of Moral Turpitude (CIMT): Offenses involving dishonesty or immoral conduct, such as theft or fraud, committed within five years of admission and resulting in a sentence of one year or longer.​
• Aggravated Felonies: Serious crimes including murder, rape, drug trafficking, and certain theft or violent crimes with a sentence of at least one year. ​
• Controlled Substance Violations: Convictions related to drug offenses, excluding a single offense of possession of 30 grams or less of marijuana.​
• Firearm Offenses: Illegal possession, use, or sale of firearms or destructive devices.​

3. Violation of Immigration Status

Non-citizens who violate the terms of their visa or Green Card status may face deportation. This includes overstaying a visa, engaging in unauthorized employment, or failing to maintain the required status. ​

4. Fraud and Misrepresentation

Providing false information or engaging in fraud to obtain immigration benefits can lead to removal proceedings. This encompasses marriage fraud and falsifying documents. ​

5. Security and Related Grounds

Involvement in activities that pose a threat to national security, such as espionage, terrorism, or participation in totalitarian regimes, can result in deportation.​

Evidentiary Standards in Deportation Proceedings

Deportation proceedings are civil, not criminal, and thus operate under different evidentiary standards. The government bears the burden of proof to establish deportability by “clear and convincing evidence.” This standard requires that the evidence presented must be highly and substantially more likely to be true than not.​

Key Considerations:

• Documentary Evidence: Official records such as conviction documents, visa applications, and employment records are pivotal.​
• Witness Testimony: Testimonies from law enforcement officers, employers, or other relevant parties can support the government’s case.​
• Admissions by the Respondent: Statements made by the individual during interviews or hearings can be used as evidence.​

Case Studies Illustrating Deportation Grounds

1. Criminal Convictions Leading to Deportation

In the landmark case of Barton v. Barr, the Supreme Court upheld the removal of a lawful permanent resident due to criminal convictions deemed aggravated felonies. Andre Barton, a Green Card holder, was found deportable after convictions for offenses including aggravated assault and firearm possession during the commission of a felony. ​ 

2. Visa Revocation Due to Criminal Activity

Recent incidents have highlighted the revocation of visas for individuals involved in criminal activities. For instance, a University of Minnesota graduate student’s visa was revoked following a DUI conviction, leading to detention by Immigration and Customs Enforcement (ICE). Federal officials clarified that the revocation was due to the DUI offense, not related to any protest activities. ​ 

Legal Process for Deportation

The deportation process involves several stages:​ 

1. Notice to Appear (NTA): The individual receives an NTA outlining the charges and grounds for deportation.​
2. Master Calendar Hearing: An initial hearing where the immigration judge explains the proceedings, and the individual pleads to the charges.​
3. Merits Hearing: A detailed hearing where both the government and the individual present evidence and arguments.​
4. Decision: The immigration judge issues a ruling based on the evidence and applicable law.​
5. Appeal: The individual may appeal the decision to the Board of Immigration Appeals (BIA) and, if necessary, to federal courts.​

Conclusion

While visas and Green Cards provide legal avenues for foreign nationals to reside in the United States, they do not offer absolute protection against deportation. The government must adhere to evidentiary standards set forth in federal immigration law to demonstrate that an individual is deportable. Understanding these legal frameworks is crucial for non-citizens to navigate their rights and obligations within the U.S. immigration system.