Understanding Legalization: The Detained and Deported


This is the second in a series of articles taking a deeper look at the legalization provisions of the immigration reform bill currently being marked up in the Senate. Before you read this, you should read my article on who is eligible for legalization of immigration status.

The last four years have seen the largest wave of arrests and deportations of immigrants of any period in American history. Huge increases in staffing at Border Patrol and ICE have resulted in hundreds of thousands of deportations every year.

This crackdown continues to take place even as immigration reform is debated in Congress. It leads to the question: If immigration reform is passed, what will happen to those already detained by Homeland Security or who come into contact with ICE before they receive the new Registered Provisional Immigrant (RPI) status created by the legalization program?

Under the legislation, for the immigrants who have been arrested or are detained before enactment of the immigration reform bill, if they appear to be eligible for the legalization program, the courts will give Homeland Security seven days to raise any objections against ending deportation proceedings. If Homeland Security fails to do so, the immigrant’s proceedings will end and he or she will be released to apply for RPI status.

Similarly, if ICE encounters someone who is eligible for RPI during a raid, that person will not be detained. Now, for practical purposes, the undocumented immigrant may not be able to prove RPI eligibility at the time of the raid, and may be taken into custody. That unlucky individual would then be given a chance to offer evidence that he or she would qualify for RPI and would then be released if eligible.

I am often asked if those who have already been ordered deported or who had an immigration court hearing but never went will be eligible for legalization. The answer is, if the person is otherwise eligible for RPI status, they will be able to receive RPI in spite of their immigration legal difficulties.

The last group of people I want to discuss are those who have already been deported.

As you might expect, the general rule is that they cannot apply for legalization. However, there are important groups of deportees who can apply for special permission (a “waiver”) to allow them to come back to the U.S. and apply for RPI status. Those eligible for the waiver are the spouse, child, or parent of a U.S. citizen or lawful permanent resident; DREAMers who have a diploma from a U.S. high school; and DREAMers who have lived an aggregate of three years in the U.S over the last six years. Of course, such returnees would have to show they would otherwise be eligible for RPI.

In other words, the immigration reform bill is generous in forgiving past immigration difficulties. However, it should be kept in mind that once the application period ends, anyone who has not applied or who has been denied will be exposed to arrest and removal going forward.

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Patrick Young blogs daily for Long Island Wins. He is the Downstate Advocacy Director of the New York Immigration Coalition and Special Professor of Immigration Law at Hofstra School of Law. He served as the Director of Legal Services and Program at Central American Refugee Center (CARECEN) for three decades before retiring in 2019. Pat is also a student of immigration history and the author of The Immigrants' Civil War.