If you are facing immigration proceedings or helping a loved one navigate them, you may have come across the concepts of removal and deportation orders. These terms are often used interchangeably. Yet, deportation orders refer to an older system that distinguished between “exclusion” and deportation, while removal orders refer to the modern legal framework.
At EMP Law, we help clients across North Carolina understand their rights, protect their families, and fight back against unjust immigration consequences. Our immigration attorneys—including Helen L. Parsonage, a highly experienced litigator admitted to multiple federal courts and circuit courts of appeal—have a long track record of success. We have taken on the government, won cases at the federal level, and helped clients remain in the United States when the odds were against them. We are here to help.
Deportation, Exclusion, and Immigration Law
To answer the question, “What is deportation?” and distinguish it from removal, we need to look at historical US immigration law. Before 1996, US immigration law distinguished between two legal immigration court processes: deportation and exclusion.
Both processes involved the US government claiming a noncitizen lacked the right to be in the US and attempting to send them away. For better or worse, understanding the differences between deportation vs. removal proceedings requires understanding the differences between deportation and exclusion.
What Is Deportation?
Immigration law establishes several circumstances that make someone deportable, including:
- Being in the US without legal status,
- Remaining in the US after your valid legal status expires (“visa overstay”),
- Committing certain criminal offenses,
- Entering the US without legal status,
- Committing immigration fraud,
- Being a threat to national security,
- Helping noncitizens without status enter the US, and
- Violating the terms of their legal status.
You may also be deportable if you become a “public charge” within five years of entry, meaning you rely on government benefits. Several types of legal statuses are exempt from that ground.
Notable characteristics of deportation proceedings include:
- Involving noncitizens already inside the US,
- Beginning with the government notifying the noncitizen that it believed they were deportable and on what grounds, and
- Offering the noncitizen a chance to defend themself in immigration court through multiple court hearings.
While a case is ongoing, the noncitizen may or may not be taken into custody and confined in a prison-like facility.
What Is Exclusion?
Immigration law also sets forth several circumstances that make someone excludable, or inadmissible, which include most deportation grounds, as well as:
- Previously violating US immigration law;
- Having a prior removal order; and
- Posing a threat to public health, such as having certain communicable diseases.
Exclusion proceedings are notable because they:
- Apply to individuals at the border or another port of entry, such as an airport;
- Begin when the government prevents a noncitizen from entering the US; and
- Offer a noncitizen a chance to defend themself through an expedited process.
Usually, the government detains a noncitizen in a prison-like facility while exclusion proceedings take place.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which ended the separate exclusion and deportation processes and created a single, streamlined system: removal proceedings. Under this unified process, all noncitizens that the government claims do not have a right to be in the US, whether trying to enter the US or already here, go through removal proceedings.
Removal vs. Deportation
In short, the primary difference between a removal order vs deportation order is time. Under pre-IIRIRA law, deportation was one of two legal proceedings for removing a noncitizen from the US, along with exclusion. Since 1997, removal has encompassed both exclusion and deportation processes.
Yet, echoes of the distinctions between exclusion and removal remain. Knowing the historical distinctions between removal vs. deportation can help you to understand other aspects of immigration law.
Expedited Removal
The government often pursues expedited removal when it apprehends noncitizens before they enter the US. This process still resembles exclusion proceedings under the old system. For the government to use expedited removal, the noncitizen must generally have no credible claim to status in the US.
Deportability and Excludability
One of the primary relics of the old system is within the Immigration and Nationality Act (INA)’s definition of what justifies removing someone: they are either deportable or excludable. While the INA specifies that someone who is excludable is also deportable and vice versa, knowing the difference between removal and deportation helps explain the seemingly duplicative deportability and excludability provisions in the law.
Pre-IIRIRA Orders
Some noncitizens who went through immigration court proceedings before 1997 may still want to pursue immigration benefits. Those individuals may have deportation or exclusion orders against them that predate IIRIRA. Knowing the difference between removal and deportation enables those with 30+ year old deportation or exclusion orders to make sense of those orders.
At EMP Law, we are committed to helping individuals and families fight back against unjust immigration consequences. Whether you are facing removal, seeking release from detention, or hoping to challenge an order from the past, contact EMP Law today to schedule a consultation. We can help you understand your rights and build a path forward.
Michael provides compassionate, diligent, and creative legal services that are tailored to meet each client’s specific needs. His experience relating to clients from diverse backgrounds makes him well suited for representing his clients across a broad range of legal areas. He practices in the areas of employment law and family law, and is experienced in criminal law.
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