Can You Be Deported While Your Green Card Application Is Processing?
The short answer is yes, it’s possible to face deportation even if you’ve applied for a green card. This is because submitting an application alone does not give you lawful immigration status or protection from removal. Only once your green card is actually approved do you become a legal permanent resident with more security.
Some common situations where people may be at risk of deportation despite a pending green card application include:
- Entering the U.S. without inspection and later applying for a green card through a family member
- Overstaying a visa and then applying for a green card based on a relationship
- Violating the terms of a temporary visa, such as working without authorization, before seeking a green card
- Committing certain crimes that make you deportable regardless of a pending application
Until you officially have a green card in hand, you generally remain vulnerable to being placed in removal proceedings and potentially deported if you don’t have an underlying lawful status.
However, if you end up in deportation proceedings while your green card application is processing, you may have avenues to delay your case and keep your application alive.
Seeking a Continuance of Removal Proceedings
If you’re in removal proceedings before an Immigration Judge but have a pending green card application, your deportation defense lawyer can request that the judge postpone your case to give USCIS a chance to make a decision on your underlying petition.
A continuance is a temporary pause in removal proceedings. Immigration judges have the power to grant continuances for “good cause” under federal regulations. A pending I-130 petition that is likely to be approved and would give you a basis to challenge deportation is often seen as a good cause.
To request a continuance, your attorney files a written motion explaining your situation and the status of your petition, arguing that you are likely to prevail and should be given time for a decision before the deportation case moves forward. Documentary evidence of the pending petition should be included.
Whether a continuance is granted is up to the discretion of the individual judge, but many will agree to postpone removal proceedings for a reasonable period to allow USCIS to adjudicate a promising I-130 petition. Some judges may continue the case for just a few months, while others may be willing to put it off a year or more, depending on the circumstances.
If the judge denies a continuance, that decision can be appealed to the Board of Immigration Appeals (BIA). But in general, if a judge refuses to postpone removal, it may be a sign that they don’t see your I-130 petition and green card application as likely to succeed. It’s important to discuss alternate deportation defense strategies with your lawyer.
ICE Policies on Petitions and Applications for Relief
In addition to seeking a continuance from the judge, your lawyer may engage with the Immigration and Customs Enforcement (ICE) attorney prosecuting the deportation case and request that they ask USCIS to expedite your I-130 petition.
ICE attorneys can affirmatively ask USCIS to quickly adjudicate applications for immigration benefits like I-130 petitions in removal cases where the person appears eligible for the benefit. The goal is to promote efficiency and conserve government resources.
If USCIS approves the petition, then you can proceed with your green card application in court or move to terminate removal proceedings without prejudice, allowing you to apply for permanent residence with USCIS.
While this policy doesn’t guarantee your green card will be approved or deportation stopped, it provides another avenue for your lawyer to pursue to resolve your situation favorably. Administrative Closure and Termination of Proceedings
In some cases, your attorney may be able to seek administrative closure or termination of your removal case while your I-130 petition or green card application is pending. Administrative closure takes the case off the court’s calendar temporarily, preventing you from being issued a removal order Termination ends your removal proceedings, allowing you to file your green card application with USCIS.
On July 29, 2024, new regulations took effect, which gave Immigration Judges broad authority to grant administrative closure and termination over the objection of the ICE attorney. The regulations, found at 8 CFR §§ 1003.1(l) and § 1003.18(c), set forth when the Immigration Judge must grant administrative closure or termination, and when the Immigration Judge may grant administrative closure or termination, even without the agreement of the government.
Get an Experienced Deportation Defense Lawyer
If you’re facing the frightening prospect of deportation with a green card application in the works, the most important thing you can do is get a skilled removal defense lawyer on your side as soon as possible to protect your rights.
Deportation cases move quickly, so you’ll need an attorney who understands the system and can engage with the court and ICE promptly to advocate for your chance to complete the green card process.
At the Law Office of Lina Baroudi in San Jose, CA, we’re committed to doing everything possible under the law to help our clients stay in the U.S. with their families. We’ve assisted countless individuals in pausing deportation long enough to obtain green cards and build new lives in America.
Our team will carefully review your situation and identify the most promising strategies to defend you, from seeking continuances to pushing for expedited adjudication of your application to termination of proceedings.
Don’t let the threat of deportation destroy your dream of becoming a lawful permanent resident. Contact us today for guidance on stopping removal while giving your green card the best possible chance of success.
