If I receive a Notice to Appear, does that mean I will be deported?

In this week's Consulta Migratoria® column, I answer a question from a reader who wants to know how receiving a notice to appear will affect him or her. Each case is different and the answers vary depending on each person's immigration history. Here I provide a general answer to your questions. Please consult with an immigration attorney for personalized legal advice before beginning any proceedings.

This is the column: I entered the U.S. illegally 20 years ago and have never left. I am now married to a U.S. citizen and she wants to petition me. I have heard that even though I am married to a citizen, immigration could deny my case and deport me. is this true? - Pedro J. Pedro, depending on your history and various factors, it is possible that the U.S. Citizenship and Immigration Services (USCIS) may deny your case. If they do, they will notify you of their decision in an official letter (notice of action). If your case is denied, USCIS may also give you a notice of action. Notice of Appearance (Notice to Appear) detailing the reasons why you should be removed from the country and ordering you to appear before an immigration judge on a certain date, thus initiating removal proceedings against you.

That does not mean you will be deported immediately. The U.S. government has emphasized its "zero tolerance" stance against immigration fraud and violations of immigration law. To reaffirm it, it recently announced adjustments to its policy for the issuance of notices to appear in courtThe new law, which expands the cases in which the person can be removed, complies with the immigration enforcement priorities of the U.S. Department of Homeland Security.

Under the new official USCIS guidelines, among other circumstances, they will issue a Notice to Appear if:

  • there is evidence of fraud or misrepresentation
  • there is a history of criminal activity
  • an applicant abuses any program related to the receipt of public benefits
  • an applicant's Application for Naturalization is denied for lack of good moral character due to a crime
  • an applicant is unlawfully present in the United States following the denial of an immigration application or petition

In addition, prior policies for issuing notices to appear still stand, such as in national security cases, if required by law, or in certain cases of denial or termination of TPS or DACA that result in the removal of your lawful status in the country. Your situation is sensitive because even though you are married to a U.S. citizen, you have violated U.S. immigration laws by entering and living in the country illegally. You will have to file several applications with USCIS to try to obtain your permanent residency which could be denied if you do not meet all the necessary requirements.

Now more than ever it is important to go to a licensed and experienced attorney to evaluate your situation before you begin immigration proceedings to determine your legal options and chances of winning your case, and if necessary, to represent you in immigration court. Make sure you get legal advice from an attorney, not a notario, immigration consultant, paper filler or a multi-service. Going to one of these people who are not qualified to do immigration work, and who would be breaking the law by offering legal advice, could result in serious mistakes that lead to your deportation.