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How may a US deportee return?

Published:Wednesday | August 20, 2014 | 8:00 AM

Venice Williams-Gordon, Contributor

THE DEPORTATION of Jamaican nationals from the United States (US) continues to grow. Many deportees upon their arrival in the Jamaica have found themselves in a familiar but strange land as they struggle to reconnect with the Jamaican economy and lifestyle.

Others leave behind in the US their only family, making them disjointed in their attempts to resocialise in Jamaica. But is there a way, other than by illegal means, for a deportee to obtain legal re-entry into the US?

The United States Immigration and Nationality Act 1952 is of paramount importance to any deportee who wishes to achieve legal re-entry in the US. This piece of legislation defines a gamut of basic circumstances under which an alien may be deported from the US. Under this legislation, an alien is defined to mean any person not a citizen or national of the US.

One way an alien may be deported from the US is by committing criminal offences which are considered aggravated felonies under United States immigration law. These criminal offences include, but are not limited to murder; rape; drug or firearms trafficking; sexual abuse of a minor; child pornography; money laundering, fraud or tax evasion involving more than US$10,000; theft or violent crime with a sentence order of at least one year (it is irrelevant if it was suspended or if you only had to serve part of it); espionage, sabotage, or treason; perjury with a sentence of at least one year and more. In recent times, case laws have widened the definition of 'aggravated felony' to include simple battery, theft, filing a false tax return, and even failing to appear in court. Additionally, many offences are classified as 'aggravated felonies' if they carry a sentence of one year regardless of whether that sentence is actually imposed or sentenced in full.

Therefore, if a deportee was to be convicted of an aggravated felony in the US at any time, there may be very little that you can do to avoid deportation, unless the deportee can prove it is more likely than not that he or she would be tortured in your native country upon return. Once deported, such a deportee may not return to the US unless he or she receives permission from the attorney general of the US to re-enter. This approval process is very thorough and the applications are considered on a case-by-case basis.

Waiting periods

It should be noted that a deportee must remain outside of the US for varying time periods depending on the nature of the crime or other reason for removal before he or she can seek to make an application for permission to re-enter.

For example, an alien ordered removed in an expedited removal proceeding must remain outside the US for a period of five years. Other circumstances may impose longer periods.

Previous case laws have created a litany of items that the US attorney general may consider in determining whether permission should be granted. These include, but are not limited to:

(1) The basis for deportation.

(2) Recency of deportation.

(3) Length of residence in the US.

(4) Moral character of the applicant.

(5) His respect for law and order.

(6) Evidence of reformation and rehabilitation.

(7) Family responsibilities of applicant.

(8) Inadmissibility to the US under other sections of law.

(9) Hardship involved to himself and others.

(10) The need for his services in the US.

An alien who receives permission and re-enters legally may not later be deported for the same acts that were the basis of his or her previous deportation.

The law surrounding grounds for deportation is complicated. Further, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact an immigration attorney.

Venice Williams-Gordon is a partner at Lewis, Smith, Williams & Co. Venice may be contacted via vwilliams@lswlegal.com or info@lswlegal.com or www.lewissmithwilliams.com. This article is for general information purposes only and does not constitute legal advice.