Deportation, Removal & Exclusion
What Is a Removal Proceeding?
After a person is arrested or undergoes an investigation, a removal proceeding is scheduled to determine whether he or she will be deported. The immigrant receives a "Notice to Appear" (NTA) from Immigration and Customs Enforcement, part of the federal government's Department of Homeland Security.
The removal proceeding is presided over by an immigration judge who hears arguments from both the immigrant's attorney and the USCIS (US Citizenship and Immigration Services), the government agency seeking deportations. The judge then hands down an order of termination, relief from removal, or a removal.
The laws pertaining to removal proceedings can be confusing and often change. In 1993, it was known as "exclusion and deportation," but the new deportation law in 1997 renamed deportation "removal" and put exclusion cases in circuit courts.
Immigration violations, as well as, criminal convictions can result in deportation, ineligibility for relief from removal, and being barred from naturalization, which is the process whereby United States citizenship is conferred on a foreign citizen or national after he or she has fulfilled certain requirements established by Congress. Deportation and exclusion proceedings have been combined into a single proceeding called a “removal” proceeding. There are five broad categories, or grounds for deportation. They include:
Entering the country without proper authority
Status violators who violate the terms of their admission or work without permission
Persons with a broad range of criminal convictions
Persons who are members of certain prohibited organizations
Certain people who become public charges within five years of entering the U.S.
We also handle complex cases where the applicant is in removal or deportation proceedings, or where the petition was not timely filed.
It is important that an attorney assess what type of petition must be filed, and in most cases, it is critical that the petition be filed prior to the expiration of your conditional residence.
Cancellation of Removal
TCancellation of removal is a form of relief available to both lawful permanent residents and non-residents under certain circumstances if they are facing an immigration judge in removal proceedings. In order for individuals to qualify for this relief, certain requirements must be met.
Cancellation of Removal for lawful permanent residents
A Legal Permanent Resident for a minimum of 5 years;
The lawful permanent resident resided in the United States continuously for 7 years or more after being lawfully admitted to the country and before you received a Notice to Appear (NTA) in removal proceedings
No aggravated felony conviction and
Warrants a favorable exercise of discretion by the judge.
The judge will take all factors in consideration, including length of residence in the United States, solid family ties and good standing in the community as well as criminal record and past criminal offenses.
Cancellation of Removal for Non-Legal Permanent Residents
Even if you are not a lawful permanent resident, you may still be eligible for Cancellation of Removal before an Immigration Judge.
In order to establish your eligibility in front of a judge, you must show that you:
You have been physically present in the U.S. continuously for 10 years prior to being served the Notice to Appear in Immigration Court. It is important that during this 10 year period, you have not been out of the country for longer than 6 months during those 10 years and no one trip out of the US lasted more than 3 months;
You have been a person of good moral character for that entire 10-year period; good moral character has its own definition within the immigration world.
You have not been convicted of certain crimes that make you deportable or inadmissible, such as drug crimes, felony theft or domestic violence; and
Your removal would cause exceptional and extremely unusual hardship for your US citizen or Legal Permanent spouse, parent or child.
Once your case is set for an individual hearing, we will present evidence and testimony from witnesses to demonstrate your eligibility for Cancellation of Removal. The Immigration Judge will then weigh any negative factors, including past criminal offenses, against other positive factors, such as your good standing in the community, length of residence in the US, service in the armed forces, consistent record of paying taxes, education, proof of rehabilitation, solid family and business ties in the US, and hardship that will be suffered by qualifying family members if you are not allowed to remain in the U.S. It is important to note that the Immigration Judge has complete discretion to grant or deny the application for Cancellation of Removal. If the Immigration Judge grants your application for cancellation, you will become a Legal Permanent Resident. However, if the Immigration Judge denies your application, then you will be ordered removed from the United States. You can always appeal the Judge’s decision to the Board of Immigration Appeals.
DEFENSE FOR REMOVAL PROCEEDINGS
Withholding of removal
To qualify for withholding of removal relief, aliens must establish that it is “more likely than not” that your life or freedom would be persecuted in your home country. You will need to show that there is a clear possibility of persecution by a government (or a group that the government cannot control) if your returned to your country of origin.
While withholding is a less than ideal status, for many applicants who have missed the one year filing deadline or who have a conviction which prevents a grant of asylum, withholding is a much better alternative than being removed to their home country. It’s also a better status to have in the United States than being undocumented.
Even though, a person who gets withholding is usually ineligible to apply for permanent resident or travel outside the United States, they can get work authorization.