Federal law and the Constitution state how and when the U.S. can deport a person—and what U.S. authorities cannot do. Formally, deportation is called "removal." Hundreds of thousands of people are deported from the U.S. every year, under every administration. But sometimes, the powers that be (namely, U.S. Immigration and Customs Enforcement, or ICE) get it wrong.
So what does a wrongful deportation look like, and what can you do about it?
Why Deportations Go Wrong
There are a lot of reasons that wrongful deportations happen, and many ways that deportation can go wrong.
Immigration laws are pretty complex, and it doesn’t help that they can frequently change—like they have been between recent presidential administrations. This makes it tricky for even experts like immigration lawyers, judges, and ICE officials to fully understand or correctly apply them.
On top of that, immigration systems often deal with high volumes of cases, which can lead to rushed or incomplete processing. This process allows for rapid deportation of certain non-citizens without a full hearing before an immigration judge, increasing the risk of errors, particularly for those claiming U.S. citizenship or fear of persecution.
Since there are so many moving parts in immigration cases, communication is key, and when it breaks down, things can go very wrong. The US immigration system involves multiple agencies—not just ICE, but also the Department of Homeland Security (DHS), Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS). Breakdowns in communication between these agencies can lead to errors and wrongful deportations.
At the individual level, communication issues can arise if those facing deportation do not fully understand the language in which legal proceedings are conducted, leading to misinterpretations or missed information. Even without a language barrier, mistakes in paperwork or mismanagement of immigration records can lead to errors in identifying individuals, incorrect information, or misinterpretation of legal status.
Who Should Never Be Deported?
First, let’s go over who the U.S. government cannot deport.
In theory, Uncle Sam (or Trump) cannot deport U.S. citizens, no matter if they are citizens by birth or naturalization. Birthright citizens born abroad to U.S. citizen parents under qualifying conditions generally cannot have their citizenship involuntarily revoked and therefore cannot be deported. Deportation is a process that applies only to non-citizens (also referred to as aliens).
But there's an important catch for naturalized citizens. If it's discovered that a naturalized citizen obtained their citizenship fraudulently or by willful misrepresentation of a material fact (for example, hiding a criminal record, involvement in terrorism, or war crimes that would have made them ineligible for citizenship), their citizenship can be revoked through a legal process called “denaturalization.” Once an individual is denaturalized, they lose their U.S. citizenship and revert to their previous immigration status—so they may become deportable as a non-citizen. At that point, they could be subject to removal proceedings.
It's also important to distinguish deportation from extradition. Extradition is when one country hands over an individual to another country to face criminal charges or serve out a sentence. U.S. citizens can be extradited if there's a valid treaty and legal basis, but this is different from being deported from the U.S. due to their status in the U.S.
In summary, citizens should never be deported. But of course, the system isn’t perfect, and citizens get mistakenly deported from time to time. There have been rare cases where U.S. citizens have been mistakenly targeted for deportation due to errors in documentation or mistaken identity. These are mistakes on the government’s part, but in order to point them out and assert your rights, you may well need an attorney—more on that below.
So what about everyone else? Well, for non-citizens (yes, even green card holders), the government can deport you for various reasons. But no matter what the reason, the government still has to go through the proper procedure. If it doesn’t, then that’s a wrongful deportation that you can contest, even if the underlying reasons for your deportation may have been valid.
When that happens, it’s considered to be a violation of your Due Process rights. Due Process is a major area under which an otherwise legitimate deportation can be called out as wrongful.
Due Process
There are many requirements of Due Process that the government must meet in order to effectively deport someone.
A big one is the notice requirement: if the individual is not properly notified of the deportation proceedings, they may not have the opportunity to prepare a defense or attend hearings. This is grounds for contesting a deportation as wrongful.
Another reason you could contest your deportation is if you were denied the right to appeal. Every individual has the right to appeal a deportation order under certain circumstances. If this right is denied or not properly communicated, it could lead to a wrongful deportation.
The U.S. immigration system provides various forms of relief from deportation, such as asylum, withholding of removal, or cancellation of removal, under certain conditions. If the individual is eligible for such relief but it is not considered due to procedural errors or oversight, it could lead to a wrongful deportation.
Fortunately, when an individual is wrongfully deported, they can eventually be readmitted by pursuing legal remedies.
Suing for Wrongful Deportation
So what can you do if you’re wrongfully deported? You can sue. The chance for success is greater if you have an attorney—whether that be an immigration attorney or a civil rights attorney. You may be lucky enough to get picked up by a nonprofit legal organization (such as the ACLU), particularly if your case is part of a systemic pattern by the government that could be turned into a class action.
Once you (hopefully) have an attorney, there are a number of legal routes you could potentially pursue.
- Citizens: If you’re actually an American citizen, the law has several ways to fight your deportation. Under immigration law, you can ask courts to review your citizenship claim, and if there's a real question about your status, your case goes to federal court for a fresh hearing. You can also ask a court to officially declare you're a citizen. And if you're in a detention center, you can file a habeas corpus petition - essentially asking a court to review whether your detention is legal, especially when other legal paths have been blocked.
- Due Process: If your Due Process rights are violated, you have options. You can challenge unfair government actions under the Administrative Procedure Act, though immigration laws limit this somewhat. The immigration laws themselves allow you to raise constitutional concerns. You can also file a habeas corpus petition in this case.
- Federal Tort Claims Act (FTCA): This statute might help if you were wrongfully deported because government employees messed up while doing their jobs. Basically, if a regular person would be legally responsible for similar mistakes in that location, the government could be liable too. But winning these cases is really tough because the government has major shields. For example, they can't be sued for "discretionary" decisions (which covers a lot of immigration enforcement), and many intentional wrongdoings are off-limits too (with some exceptions for law enforcement officers).
- Bivens Claims: A Bivens claim (named after the famous Supreme Court case) is basically when you sue individual federal officers for money because they violated your constitutional rights—like if they conducted an outrageously illegal search or denied your basic rights to fair treatment. The problem is that courts have become really reluctant to allow these kinds of lawsuits, especially in immigration situations, so chances of winning are slim.
The bottom line is that it usually takes some work—even for citizens—to prove the deportation was wrongful.
Lawyer Up
Unfortunately, a lot of the reasons that wrongful deportation may happen is out of your hands. One thing in your control that could make a big difference is having an immigration attorney. Lack of legal representation is a huge reason wrongful deportations occur.
Unlike in criminal proceedings, immigrants facing deportation don't have a constitutional right to government-provided counsel. Studies show that immigrants with attorneys are up to 5 times more likely to win their cases. The number of immigration cases where the immigrant had an attorney is quickly declining, from 65% of all pending cases in 2019 to just 30% as of last year.
Several studies and reports by organizations like the American Immigration Council have documented cases where individuals with legitimate asylum claims or other legal grounds to remain were deported due to inadequate legal assistance.
Did Your Lawyer Screw Up?
Of course, some lawyers are better than others. One thing to note is that if you did hire a lawyer and were still wrongfully deported, there may be further legal resource through the principle of ineffective assistance of counsel.
If your lawyer fails to provide adequate representation (such as not filing necessary paperwork on time or not properly advising the client on their rights and options), this alone could lead to a wrongful deportation.
What happens if your lawyer screwed up in a way that could have made you lose your wrongful deportation case? It doesn’t mean that you automatically have a defense from getting deported, but it does mean you have a second shot. You’ll want to file a motion to reopen the case—and, ironic as it may seem, it’ll help if you get a new attorney.
Related Resources:
- Find a Qualified Immigration Attorney Near You
- Deportation Basics (FindLaw's Learn About the Law)
- Court Curbs Trump's Power to Deport Venezuelans as 'Alien Enemies' (FindLaw's Federal Courts)
