It probably depends. I would think that an alien can be deported arbitrarily regardless of anything (having no absolute right to be in the country to begin with

It probably depends. I would think that an alien can be deported arbitrarily regardless of anything (having no absolute right to be in the country to begin with, can be rejected arbitrarily at passport control etc.), but usually in a court of law you can't be penalized for "being" something, only for doing or having done something.