Immigration and Customs Enforcement (ICE) has a new (Pilot) program designed to increase deportations called Operation Scheduled Departure. The program is aimed at those the government refers to as “fugitive aliens” meaning non-citizens who have been ordered deported in immigration court but have not left. Fugitive aliens are being told they can report to ICE to schedule their own removal from the United States. Unless they have a criminal record, they will not be taken into custody. They will be given about 90 days to make all necessary arrangements. During this time period, they will be fitted with an electronic ankle bracelet to keep track of their whereabouts. Therefore, if they change their mind during this time period and fail to either report for deportation or actually leave, the government will know where to find them.
Presumably, the program is attempting to convince so-called fugitive aliens to report voluntarily for removal. However, there have been some reports of ICE agents raiding homes looking for those with removal orders and, instead of taking them into custody, they have been ordering them to report for enlistment into the “voluntary” program.
This program should not be confused with voluntary departure, which has been discussed in previous articles and has its own drawbacks and benefits.
This is an enforcement of a deportation order. Those who leave under it will be leaving under an order of deportation. Should they wish to return to the U.S., they will either have to wait ten years or request and receive advanced permission to reapply for admission. Once they leave the United States, those who have been here illegally for one year or more will incur the ten-year unlawful presence bar. They will need to obtain a waiver for that bar. In order to apply for that waiver, they will need to show extreme hardship to their United States citizen parent or spouse. Attempting to return to the United States without these waivers will result in a life-time bar. Under that bar, aliens must wait a period of ten years from the most recent departure in order to apply for a waiver of the life-time bar.
According to ICE, over a half million immigrants are present in the United States with final removal orders. Recently, courts have been subjecting immigration raids to increased scrutiny. Last week, the Ninth Circuit found in Lopez-Rodriguez v. Mukasey that ICE had used unconstitutional tactics in a raid. With Operation Scheduled Departure, ICE is attempting to find alternatives to controversial raids.
Ali Noorani, Executive Director of the National Immigration Forum, claims that ICE is attempting to intimidate immigrants into “sign[ing] away what few rights they have so that ICE can expedite their deportation without any of those pesky American traditions like due process, a day in court, or – God forbid – seeing a lawyer to explore your legal options.”
Immigration raids, detention, and deportation proceedings pose a terrifying prospect for any immigrant. Before agreeing to self-deport, an immigrant should carefully consider their options. A final removal order does not always mean that all hope is lost. In some circumstances, a removal order may be reopened. Failure to receive notice of the hearing, errors by the attorney at the hearing, and changed circumstances may provide a basis for reopening the case.
Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.