Appellate practice dedicated exclusively to filing deportation appeals, motions to reopen, reconsider, remand and/or reissue before Immigration Judges or the Board of Immigration Appeals, and filing petitions for judicial review of deportation orders in all of the Federal Circuits of the United States.
|What is a "Stay" of an order of deportation or removal - Explained|
A "Stay" of an order of deportation or removal means simply an order of deportation or removal that cannot be executed because there is a stay order in effect "suspending the authority of the Department of Homeland Security (DHS) to execute the order of deportation or removal" until the stay is lifted. A "Stay" must be requested by the noncitizen and be granted by the reviewing court before the order of stay can be in effect. There are two (2) types of "stay of deportation" applications that can be procured by a noncitizen to prevent the federal immigration agents in a local ICE office from physically deporting (removing) the noncitizen after the BIA has issued a final adverse decision on an administrative appeal. To be clear, once the noncitizen's administrative appeal to the BIA is decided, there is one additional level of "review" that is available to the nonctizen to test the validity of the initial order or deportation. With some exceptions, this level constitutes the first level of judicial review of the initial administrative order of deportation that is available to noncitizens as a matter of a "legal right." This first level of judicial review is filed before a Federal Circuit Court of Appeals of the United States. It is commonly referred to as a "petition for review" and must be filed by the noncitizen within the first 30-days from the date the BIA issued the final administrative decision affirming the deportation order. Before 1996, the mere filing of a petition for judicial review alone would stop ("stay") the order of the BIA from being executed by federal agents of the local ICE office were unable to legally deport the noncitizen until the Federal Circuit Court of Appeals had reviewed the final decision of the BIA. But after the 1996 amendments, as you will read below, the automatic stay that existed then was eliminated and now the law requires the noncitizen to affirmatively request an obtain a stay from the federal courts. Otherwise, the local ICE office through its agents can visit the noncitizen in the middle of the night to arrest the noncitizen and deport him or her from the United States if no "stay" order has been issued. This is true even though the petition for judicial review may remain pending.
The first of these two (2) types of applications is an administrative stay of deportation (meaning it is filed with a federal agency of the federal government) and the second type is a judicial stay of deportation, which is filed with a federal court. We will discuss below everything the noncitizen with a final order of the BIA needs to know about these applications for stay.
- The administrative stay of deportation is filed with the BIA, either in conjunction with the filing of the notice of appeal, or with the filing of the appeal brief to the BIA, or, in rare circumstances even after the BIA has adversely decided the appeal against the noncitizen. The judicial stay of deportation on the other hand is filed with the federal circuit court of appeals that will be handling the noncitizen's petition for review, and it is filed usually at the time of filing the initial papers of the petition for review with the federal court. We explore below the judicial stay of deportation that is filed with the federal circuit court of appeals after the BIA decides the case against the noncitizen.
And, there is yet another administrative stay of deportation that a noncitizen can apply directly with the Immigration and Customs Enforcement agency ("ICE") located in the same jurisdiction where the noncitizen resides-- an application for stay of deportation or removal by using Form I-246
and paying the filing fee (currently) in the amount of $155.00. That form contains basic information as to what the noncitizen applying for a stay with ICE will need to have the application be adjudicated on the merits. This page is designed to address the most significant aspects of a seeking a judicial stay request before the United States Courts of Appeal.
First, do you know if your relative is in the custody of US ICE?
Click on the "Detainee Locator" below and follow the steps to find if your relative is in the US ICE custody. You will need your relative's "A #" or the full name, his or her date of birth and country of birth in the alternative.
Do you need to obtain a "stay" to prevent a close family member or friend who is in ICE custody from imminent deportation or removal from the United States?
Complete the following information and press the button "send", a duty attorney or experienced case coordinator will contact you either by mail or telephone according to your choice. Be prepared to provide key information to the person contacting you to enable us to determine whether a stay can be obtained.
| Would the mere filing of a timely Petition for Review in the Court of Appeals prevent ICE from carrying-out the deportation of the noncitizen before the federal court decides the Petition on the merits? |
|"A mighty woman with a torch, whose flame is the imprisoned lightning, and her name Mother of Exiles."
The short answer is "No"- the mere act of filing a timely "Petition for Review" (e.g., filing it within 30 days from the date of the final order of deportation of the BIA), will not prevent agents from the Immigration and Customs Enforcement (a.k.a., ICE or USICE) from carrying-out the deportation of the noncitizen. To prevent ICE agents from prematurely deporting the noncitizen from the United States after receiving a final order of deportation or removal from the BIA, the noncitizen must apply for, and obtain, an approval or grant of a "motion for a stay of removal" of the final order of the BIA. A motion for stay of removal needs to be filed concurrently with the filing of the "Petition for Review" in the corresponding United States Court of Appeals so as to prevent ICE agents from carrying-out the deportation of the noncitizen prematurely. The short answer for this (long answer below) is because since the enactment of the 1996 amendments to the Immigration and Nationality Act ("INA"), there is no longer an automatic stay of the final order of removal of the BIA available to a noncitizen filing a Petition for Review, as it was available before the 1996 amendments to the INA. At present, therefore, agents from ICE are empowered with the authority to arrest the noncitizen even though he/she has filed a timely Petition for Review and the federal court has not yet issued a final decision on the petition. This means the ICE agents can actually carry-out the deportation of the noncitizen at anytime even if the United States Court of Appeals has not yet decided the Petition for Review because the noncitizen has not yet obtained a stay of deportation (or stay of removal as it is now referred to in immigration parlance).
|WARNING: Do not confuse a judicial "stay of deportation", which relates to a request made directly to the United States Court of Appeals that is reviewing a Petition for Review (from a final order of the BIA), with an administrative "stay of deportation" request, which is made directly to the Field Office Director for the Immigration and Customs Enforcement (ICE), and which is presented to the Director by completing a Form I-246, paying a required filing fee and attaching the noncitizen's valid passport.
|Courtroom of the Supreme Court
But Why Would ICE be Able to Effect the Deportation of the Noncitizen When the Federal Court has not yet Decided the Merits of the Petition?
In order to help you understand this (the long answer), consider that before the 1996 amendments to the Immigration and Nationality Act, the law then required the federal courts to dismiss the Petition for Review of a noncitizen who was no longer physically present in the United States. In other words, the federal courts were prohibited from accepting or from continuing to consider a Petition for Review if the noncitizen became absent from the United States. The deportation (or voluntary physical departure) of the noncitizen therefore would cause the federal courts to lose the authority to consider the petition because of lack of jurisdiction. And this was true at all times during the adjudication process of a Petition for Review, so that a court will lose jurisdiction over the petition whenever the noncitizen physically discontinue her presence from the United States, no matter how small the departure was, and no matter whether the departure was voluntary (self imposed) or involuntary (official ejection).
The point here is to explain that after the 1996 amendments mentioned above, the laws no longer require that the noncitizen be physically present in the United States for the federal courts to consider (a timely) Petition for Review. Consistent with this change in the law, if the noncitizen today is deported from the United States at any time after a final order is issued by the BIA, and the noncitizen thereafter prevails on her Petition for Review, the federal court will issue a grant of the petition and the federal government would be required to accept the noncitizen request for reentry to the United States, where applicable.
But first, what is a "stay" of removal?
As an example to help you understand what a stay of removal is, think of it as something you have probably heard before and are familiar with— a stay of execution in a criminal case. The chances are that you have probably heard the phrase used before regarding a "stay of execution" referring to a death-row inmate in a state penitentiary waiting for his/her execution. And you have probably heard about a last minute order from a court "staying" his/her execution (meaning, the death of the inmate will not occur just yet until the court "lifts" the stay of execution). A stay of execution in that case scenario refers to an order from a proper court stopping for example the State of Alabama or the State of Washington (or any other state in between) from executing the prisoner until the court lifts the stay of execution. Here as well, a "stay of deportation" means that ICE—will not be able to carry-out the deportation of the noncitizen until the federal court of appeals lifts the stay of deportation, usually at the end of the case when the federal court decides the merits of the Petition for Review.
A stay of removal is therefore a preliminary or initial order from the federal court reviewing the petition for review preventing agents of ICE from executing the administratively "final order" of deportation issued by the BIA, until further order of that reviewing court. The reviewing court is the United States Court of Appeals for the particular circuit that has jurisdiction over the location where the administrative deportation proceedings where completed. For example, if the deportation proceedings before the immigration judge took place in Manhattan, New York, the appropriate federal circuit court in charge of reviewing the "final order" of the BIA (after it reviewed the administrative appeal from the order of the immigration judge in Manhattan) is the United States Court of Appeal for the Second Circuit. If, the deportation proceedings before the immigration judge took place in Norwalk, New Jersey, then, the appropriate federal circuit court in charge of reviewing that final order of the BIA is the United States Court of Appeal for the Third Circuit, and so on.
And what does a noncitizen need to prove to the reviewing court in order to obtain a "stay" of deportation or removal?
To obtain a stay of removal from the federal court is often extremely important because it will allow the noncitizen to continue to challenge the propriety of the BIA's order of removal while the noncitizen is still present in the United States. But filing and prosecuting a Petition for Review in a federal court of appeals is a very complex and demanding endeavor and it will likely cost the noncitizen substantial legal fees to hire an experienced appellate attorney to represent the noncitizen. The Petition for Review process takes approximately between 18 months and several years before it is completed, depending on the complexity of the case and most significant, depending on the current backlog of the relevant federal court of appeals. If your case arises from a city of the United States with large immigrant populations, then it is likely that the reviewing process in the corresponding federal court of appeals will be significantly longer. Conversely, if your case arises from a city with a small immigrant population, it may take a lot less time to complete it. Also of important consideration is whether the noncitizen is free from federal custody at the time of the filing of the Petition for Review because a stay of removal will allow that noncitizen to continue to be employed and earn an income to enable the noncitizen to pay the legal fees associated with filing and adjudicating a Petition for Review.
Another very important consideration is the fact that between 25% and 33% of the BIA orders of removal that are appealed in any year are reversed (vacated) or remanded (returned to the BIA for correction) by the federal courts of appeals. This means that for one reason or another the federal court of appeals will find that the BIA made an error in your case. And typically, the federal courts of appeals will only send the case back to the BIA (or will vacate the order of the BIA) when the error was of significant importance to the final outcome of the case. Sometimes, returning a noncitizen to his or her country of nationality may place the life or liberty of the noncitizen in jeopardy. While in others, it may be devastating emotionally when severing the noncitizen from his immediate family, as well as economically, making the need for obtaining a stay of removal exceedingly important to the noncitizen.
Then, with these factors in mind, each noncitizen can estimate how important it may be to apply for and obtain a stay of removal while a Petition for Review is being adjudicated by the federal court of appeals.
To obtain a stay of removal from the federal court of appeals, the noncitizen must prove the following four (4) factors: (a) the likelihood of success on the merits, (b) threat of irreparable harm if the stay is not granted, (c) absence of substantial injury to the party opposing the stay if one is issued, and (d) any risk to the public interest. Of these four showings, the most significant requirements to be established by the noncitizen are the initial two (2). Each one of these factors are likely driven by the facts of the particular case of the noncitizen requesting the stay of removal, and you should note that the greater showing the noncitizen can make in the first two (2) prongs, the lesser the noncitizen will be required to establish the latter two (2) requirements. Economical detriment alone, or family separation alone, are usually insufficient to make the required showing.
And that's what, in short, a stay of removal is!
In Practical Terms However, Only Those Noncitizens Out of Custody can Really Benefit From a Stay Order Pending the Federal Court Review Process
If a noncitizen remains free from mandatory ICE custody (meaning is not in some federal detention facility) while her petition for review is pending before the federal circuit court of appeals, it is in this case scenario that a stay order is the most beneficial to her. Why? Because she can continue to work and to support her family, she can continue to contribute to the family's set schedule of monthly expenses including the ability to pay for her attorneys' legal fees, and because she will be permitted to continue to take care of her minor children, her spouse etcetera where applicable. Conversely, if she remains under the mandatory custody of the federal government while her federal court case is pending, the benefits from a stay order are less significant and obviously so, because she will be unable to accomplish all of that, which she would be able to accomplish if she is free from the severe restrictions of custody.
When are Noncitizen Considered to be Subject to Mandatory Detention?
A noncitizen who has been convicted of an aggravated felony (a term of art consisting of numerous selective type of convictions and/or attempts to commit any of the criminal acts enumerated in the law) will be "subject to" mandatory federal detention after ICE apprehends the noncitizen immediately upon coming into contact with him or her. Although different rules apply when the noncitizen is in ICE detention while litigating her case administratively (before the immigration court or the BIA) this portion of this article below deals exclusively with the detention of noncitizens whom already received a "final order" of removal from the BIA.
Mandatory detention after receipt of a final order of removal means that while the noncitizen's case is pending before the United States Court of Appeals, the noncitizen will be required to remain in the custody of the federal detention facility (in most cases) until her case is decided by federal circuit court. The argument by the government goes somewhat like thisó the noncitizen who has already received a final order of removal from the BIA, is closer to her final days in the United States and therefore poses a higher risk of flight if released from detention. And you should know however that each region (circuit) of the United States views the government's reasoning differently; some follow it with devotion and others, thankfully, view it with healthy scrutiny.
The Ninth Circuit is at the vanguard on applying a healthy dozes of scrutiny and skepticism to the government's reasoning on mandatory detention, and today (March 7, 2011), the Ninth Circuit decided a mandatory detention case expanding its previous holding in Casas-Castrillon to Diouff v. Napolitano reasserting that true mandatory detention in the Ninth Circuit is rather a very small period of time.
As noted above, several dozens of criminal convictions qualify as "aggravated felonies" and to give you an example, consider that a noncitizen that has been found guilty of offering for sale a tiny marijuana cigarette ("joint") will be classified as an "aggravated felon" just the same as a similar individual who is convicted for offering for sale a truckload of serious controlled substances, such as heroin, cocaine, methamphetamine and several dozens of other controlled substances.
In conclusion, our immigration laws view as severely more serious the idea that a noncitizen would engage in the "trafficking" of controlled substances (the selling or intending to sell a controlled substance) than it views mere "possession" of any controlled substances for one's own personal use. This does not mean however that a noncitizen convicted of possession of a controlled substance is not going to be subject to deportation because the contrary is true. Rather, it means that if the conviction is only for possession of a controlled substance, the noncitizen may be eligible to request an immigration judge to forgive him if the noncitizen meets certain specified conditions and the immigration judge is convinced that the nonctizen deserves a second chance. But, when the conviction is for "trafficking" on any controlled substance, the noncitizen is automatically not eligible to request any forgiveness from an immigration judge and must be deported as a result, unless either the noncitizen can go back to the criminal court where he was convicted and is able to obtain his or her case reopened (something that is only available in a very narrow set of circumstances and is very difficult to accomplish) or, the noncitizen demonstrates that his deportation will more likely than not will cause him to be persecuted or tortured in his home country.
The Local ICE Practices, Policies, Guidelines and Procedures After a Final Order has been Issued Vary from Region to Region Within the United States
There should be no surprise that the practices, policies, guidelines and procedures with respect to how the local ICE operates are not uniform throughout the United States. Yes, they vary from region to region.
Lets consider a typical example to provide more content to this statement. Assume first that the noncitizen appeals a decision of an immigration judge to the BIA but in her appeal she only raises arguments that involve discretionary decisions (i.e., the judge abuse her discretion in not granting the noncitizen's applications for adjustment of status and abuse her discretion in concluding she did not merit the grant of a waiver).
Then assume further that she could have also raised the argument that the immigration judge misinterpreted or misapplied the federal regulations and/or the law in her case at the same time she raised the issue of the discretionary decision.
In this case scenario, the noncitizen will have a "weak" or "weaker case" if "not fatal" in her petition for judicial review before the United States Court of Appeals--not only because the federal courts have greater powers in deciding questions regarding the interpretation of the federal laws, and therefore raising those issues before the court is a stronger claim than raising a claim based solely on abuse of discretion--but also because the federal courts cannot consider the issue when it was not presented to the BIA in the first instance.
Although the federal courts are the ultimate interpreters of immigration laws, not the BIA, in this case a federal court would have no authority (we call it jurisdiction) to review (consider) any claim raised by that noncitizen with regards to the misinterpretation or misapplication of the federal rules or laws in her case, because she did not raise that same argument to the BIA, the BIA had exclusive authority to decide the question, and the federal courts are not permitted to review arguments raised or made to them for the first time.
There are sound reasons for this rule. The purpose behind is to allow the orderly adjudication of all claims by requiring the appellant to first raise all issues directly to the BIA (we call this "exhausting the remedies available"), so that in turn, the BIA can exercise its administrative review authority and to employ its expertise over the immigration laws and federal immigration regulations to resolve the question presented.
There are exceptions to what the BIA can rule upon. For example, the BIA cannot question the constitutionality (constitutional validity) of the immigration laws and regulations which it is delegated to enforce. As to these questions, there is no requirement that they be first raised with the BIA because (among other reasons) it would be futile given that the BIA is powerless to decide the constitutionality of the laws it has been delegated to enforce. A good example of these issues is when a noncitizen raises a challenge before the BIA that a certain federal rule violates the equal protection clause of the federal constitution. The BIA will always respond in its decision that it has no power to pass upon such issue.
The Laws Affecting Stay Requests by Noncitizens Also Vary from Region to Region Within the Federal Circuits of the United States
After the BIA issues a final order on a noncitizen's appeal, the noncitizen in most cases can file a "petition for review" with the corresponding federal circuit court of appeals, which is controlled by the location where the original Immigration Judge's order was completed. For example, if a noncitizen receives an order of deportation against her in Norwalk, New Jersey, and that noncitizen took an (administrative) appeal to the BIA, after the BIA rejects the appeal of the noncitizen, she may file a petition for (judicial) review before the United States Court of Appeals for the Third Circuit, which has exclusive jurisdiction over the location (Norwalk, New Jersey) where the original proceedings were completed before the Office of the Immigration Judge in Norwalk, New Jersey.
There are a total of eleven circuits in the United States that have jurisdiction (authority) to consider and decide petitions for review filed by noncitizens from final orders of the BIA. Each of these circuits in turn expands its jurisdictional territory over several states across the United States (remember there are 51 states and only 11 circuits, discounting the federal district of the District of Columbia). The largest of these circuits is the United States Court of Appeals for the Ninth Circuit, covering nine (9) different states in the west and two (2) other territories, Guam and the Northern Mariana Islands.
The First Circuit covers the New England states of Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.
The Third Circuit
covers Delaware, New Jersey, Pennsylvania and the U.S. Virgin Islands.
The Fourth Circuit
covers Maryland, North Carolina, South Carolina, Virginia and West Virginia.
The Eighth Circuit
covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.
The Ninth Circuit
covers the following states: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. In addition, it covers the territorial possessions of Guam and Northern Mariana Islands.
The Tenth Circuit
covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming, and,
A Brief History of our Immigration Laws.
They Are Not Always Consistent Among the Circuits. Frequently, Creating Splits Among the Circuits Over What Should be the Uniform Interpretation of the Immigration Laws of the United States
Caveat: We make reference below to a major decision from one of the federal circuits to illustrate the point we wish to make about creating splits among the federal courts. The case is Lujan-Armendariz and was decided by the Ninth Circuit in 2000. But on July 14, 2011, the Ninth Circuit reversed itself in Nunez-Reyes v. Holder, by essentially admitting it improperly applied the doctrine of equal protection to Lujan-Armendariz. We will keep the article below unchanged because despite the recent reversal and disappearance of a split among the circuits on the one issue described below, the article below continues to serve as an illustration of how splits among the federal circuits are created, and how they will likely be resolved, albeit this time, it did not need the Supreme Court's intervention because the Ninth Circuit reversed itself.
The Congress with the stroke a pen from the President enacts all of our laws including among them our immigration laws. The Attorney General of the United States thereafter promulgates rules (the federal regulations) designed to implement those laws, but ultimately, it is the federal circuits that are entrusted with the final word—i.e., by interpreting those laws enacted and created by Congress and the President's pen. That is the mechanical cycle of how laws are enacted, defined and redefined in our judicial system in the United States.
But the role of the federal circuits of the United States is key, even though they frequently are at odds with each other. Take for example the question of when a conviction for a crime in state court is to be considered a conviction for immigration purposes. In the 1996 amendments to the INA, for the very first time the United States immigration laws defined what a conviction was for purposes of immigration law. The Attorney General then promulgated rules (federal regulations) implementing what the Attorney General believed was the dictate of the 1996 amendments. Ever since however, there has been a split among the federal circuits in what is the final say on what a state conviction means or how it is interpreted under immigration law.
More specifically, the United States Court of Appeals for the Ninth Circuit in a decision entered in 2000 in Lujan-Armendaris v. INS, that federal circuit held that a conviction that has been expunged under state law may be considered equivalent to a conviction under the Federal First Offenders Program, which means that if a noncitizen who would likely be deported for suffering a conviction in state court for possession of a controlled substance for personal use cannot be used in deportation proceedings against the noncitizen because it is the equivalent of a conviction that was expunged under the Federal First Offenders Program if convicted in a federal court. But see article in "our purpose" page referencing the Ninth Circuit's reversal in Nunez-Reyes v. Holder on July 14, 2011 joining the rest of the federal circuits finding that a conviction for a controlled substance that has been expunged remains a conviction for purposes of immigration law. Nunez-Reyes expressly allows the holding in Lujan-Armendariz to continue to benefit and apply to noncitizens convicted of straight possession drug offenses in the Ninth Circuit as long as the conviction occurred before July 14, 2011, and will no longer apply to cases of noncitizens convicted of these crimes after July 14, 2011, the date that Nunez-Reyes was decided.
What this means in short, is that noncitizens who suffer a conviction in state court for possession of a controlled substance for personal use in either of the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington may successfully prevent the ICE from deporting them because any of these states falls under the jurisdiction of the Ninth Circuit. And the Ninth Circuit has held that such a conviction that was expunged may not be used against the noncitizen if the noncitizen would have been eligible for an expungment under the Federal First Offenders Program had the noncitizen been convicted in a federal court.
But this rule is not the same in other circuits. Thus, if you were convicted for the same offense of possession of a controlled substance for personal use in the state of Texas for example, you would still be deported from the United States because the Fifth Circuit Court of Appeals, which as jurisdiction over cases completed in Texas, does not agree with the Ninth Circuit's Lujan-Armendariz case. This creates a split among the federal circuits because noncitizens who are convicted of a controlled substance for personal use in California do not get deported for that conviction while the same counterparts in Texas do.
Eventually, splits among circuits are decided by the Supreme Court of the United States, whence it decides to put the splits to rest. But until then, the laws are applied differently depending on the federal circuit in which the noncitizen's deportation proceedings are completed.
As a vivid example of this cycle, in 1996 the United States Congress enacted a law that proscribed for the mandatory detention of any noncitizen considered under the laws as an "aggravated felon" (do not alarm yourself, the word aggravated felon applies for example to a noncitizen who is convicted of an attempt to sell one cigarette of marijuana). Since the mandatory detention of aggravated felons of the 1996 provision was enacted, the Attorney General of the United States promulgated rules stating in sum, that no noncitizen who was labeled an aggravated felon could be released from detention until the noncitizen was eventually deported.
Since then, the various federal circuits of the United States, and eventually the United States Supreme Court interpreted the mandatory detention provisions to actually mean that a noncitizen shall be continued in detention while she is fighting her case in court, but for a period much shorter than which was envisioned by the Attorney General when promulgating the rules of detention.
Today, actually since 2001 when the Supreme Court of the United States decided the case of Zadvidas v. Davis, the Supreme Court of the United States interpreted the immigration laws and the federal regulations dealing with the mandatory detention of aggravated felons and held that contrary to what it was believed to be the case, the mandatory detention applies only to an original period of 90 days and a reasonable period thereafter of another 90 days. If the government cannot effect the removal of the noncitizen within those 6 months, then it must release the noncitizen from detention.
The Supreme Court and the federal circuit courts are the ultimate interpreter of the laws of the United States and this was the intention of the founding fathers when they wrote the United States Constitution. The point we are trying to deliver here is that this short explanation above represents how the federal laws of the United States evolve from their original enactment by Congress, to the final interpretation of them by the federal circuit courts or the Supreme Court. The federal circuits of the United States form the vast part of the interpretation process, as they are the courts which for the most part decide the correct interpretation of all laws of the United States.
Glossary: Throughout this page and this website we use the words "deportation" and "removal" interchangeably because these words are synonymous in immigration parlance. Each word refers to the same act of ordering that a noncitizen be deported, or, the act of actually (physically) deporting a noncitizen from the United States. As you will notice, there is a significant legal difference between having been ordered deported and having been actually (physically) deported. The most significant of these differences since 1996 is that a noncitizen that has been physically deported from the US, faces severe criminal and civil consequences for returning to the US illegally (without inspection); and if the noncitizen is seeking to return legally, he or she will face severely difficult and costly hurdles to overcome before receiving approval to return. Noncitizens whom have been ordered deported, but have not yet been removed, stand on a more favorable legal position than their physically deported counterparts.