If you are an undocumented alien, it can be incredibly stressful living and working in the U.S. when facing the risk of being deported back to your home country. The government has the ability to remove an undocumented alien if they believe that he or she is unauthorized to remain the U.S. Removal proceedings are initiated through the issuance of a document entitled a “Notice to Appear” or NTA.
An NTA lists factual allegations against you and provides a charge or charges that make you removable from the United States. The NTA is filed with the Immigration Court in your local area. The Immigration Court will then issue a hearing notice for you to appear in Immigration Court before an Immigration Judge to address your removability.
It is important to note that removal proceedings are not only initiated against undocumented aliens, but also against lawful permanent residents. If you are a lawful permanent resident, but you have done something to trigger removal proceedings against you, then you may very well face removal to your home country. Every person’s circumstances may vary, but there are ways to defend yourself from the threat of deportation. Our legal defense team can prevent you and your family’s deportation from the U.S. or prolong the process to give you time to plan ahead for your future.
Removal Defense Is Available
An experienced immigration attorney can review your unique case to determine if there is a strong and legitimate legal defense available to you. There are a host of common legal defenses that are used to prevent removal entirely, or extend the length of time you have to legally remain in the U.S.
You can educate yourself on the process; however it is vital to speak to a licensed immigration attorney for their legal advice and expertise in handling your case. Removal proceedings are very complicated and statistics have proven that those who have legal representation have a higher likelihood of success in their cases than those who do not.
Not Removable As Charged Defense
One of the first defenses that you can use to combat the threat of removal is to argue that the U.S. government cannot prove that you to be removable as charged. Your initial immigration hearing, which is known as a Master Calendar hearing, will involve a judge asking you if you wish to concede or contest to any removability charges in the NTA, as well as requiring you to admit to or deny any allegations against you that are in fact true. The rules regarding immigration court proceedings are specific, so it is wise to hire an immigration attorney to handle your case.
DHS Burden of Proof
To establish a burden of proof, the Department of Homeland Security must prove by clear and convincing evidence that you are removable. If the DHS is incapable of providing proof of your removability, then they have failed to satisfy their requirements and the judge can legally dismiss your case.
If you are found to be removable as charged, the judge will provide information on the types of relief from removal you may be eligible for. Your immigration attorney can provide you the details on these different types of relief and lay out options for you to consider. The various forms of relief that are available in removal proceedings can be rather complicated, so it is important that you are screened thoroughly to ensure your eligibility for such relief.
Different Relief Types
To first qualify for relief, you must be able to provide information regarding any family relatives you have that are living in the U.S. and their legal status, as well as how long you have lived in the U.S. and your legal status. It is also important to provide information on how you entered the U.S., what types of visas or immigration status you have had in the past, and whether you have any criminal history. An immigration attorney will be able to act as your advisor on your qualifications for relief, since there are many types of relief from removal that are available.
The most common types of relief are as follows:
Adjustment of Status
Adjustment of Status is a form of relief that allows a non-immigrant to change their legal status to that of a lawful permanent resident, or a green card holder under the Immigration and Nationality Act (INA) Section 245. In the context of removal proceedings, this is typically done following the approval of a Form I-130, Petition for Alien Relative.
The Form I-130 is a visa petition that is filed by an immediate relative that is a U.S. citizen, such as a spouse, parent, or child, although there are other categories of individuals who can file Form I-130 petitions. If you are in removal proceedings and have a pending Form I-130, it is important to inform your immigration attorney about this, as well as the Immigration Judge.
Asylum offers protection to individuals living in the U.S. who fled from persecution in their home country or would face future persecution if they return to their home country. Asylum affords these individuals legal status in the U.S. and allows them to work and live in the country, as well as the ability to earn a green card in the future. There are many criteria that must be met to qualify for asylum. An experienced immigration attorney will help you review these requirements and determine if you are fit for an asylum status.
To learn more about asylum status, visit our Asylum Page.
Withholding of Removal
For a Withholding of Removal status, you must prove that you will most likely be persecuted if you return to your home country. It is more difficult to obtain Withholding of Removal than it is to obtain asylum and those who receive it benefit less than those who have been granted asylum. This type of undocumented immigrant will be legally allowed to live and work in the U.S., however this person would be disallowed from applying for permanent residency or traveling outside the U.S. Speak to an experienced immigration attorney to learn more about Withholding of Removal.
Convention Against Torture Protections (CAT)
This type of relief is for those who can prove that it is highly likely that they will be tortured by their country’s government if they return to their home country. The reasons for why you would be tortured are not important, as it is only important that you prove you will be tortured. This is similar to withholding since you will not be allowed to travel outside of the U.S., however you can live and work in the U.S.
Cancellation of Removal for Non-Permanent Residents
Cancellation of Removal for Non-Permanent Residents is a unique form of relief that can only be pursued in removal proceedings. It is a form of relief that can lead to a green card if it is granted by an Immigration Judge. This is done through the submission of Form EOIR-42B, Application for Cancellation of Removal.
To qualify, you must prove that: (1) you have lived in the U.S. continuously for at least ten years, (2) that you are a person of good moral character, (3) that being removed from the U.S. will be cause for “exceptional and extremely unusual hardship” to a qualifying relative who is a U.S. permanent resident or citizen. These include spouses, children, or parents. You must also not have been convicted of certain crimes. There is a cap of 4,000 visas each year for Cancellation of Removal. It is very important to pursue this type of case with the assistance of an experienced immigration attorney.
Cancellation of Removal for Permanent Residents
If you are a lawful permanent resident, or green card holder, you may be eligible for cancellation of removal for permanent residents if you are in removal proceedings. This is discretionary application that an Immigration Judge may grant if you demonstrate that: (1) you have been a lawful permanent resident for at least 5 years, (2) you have resided continuously in the U.S. for a period of at least 7 years, and (3) you have not been convicted of an aggravated felony. The Immigration Judge will also consider all of the positive equities you have in the U.S., such as your length of residence, your family ties, and your employment history, among many other factors. The Immigration Judge will consider negative factors in your case as well, such as your criminal history and immigration violations. By conducting a balancing test of the positive factors and negative factors, the Immigration Judge will decide whether you should be permitted to remain in the U.S. as a green card holder or if you should be removed to your home country.
Cancellation of Removal Under VAWA
Victims of domestic violence and emotional abuse by a U.S. or lawful permanent resident spouse or parent may have relief in the form of Cancellation of Removal under the Violence Against Women’s Act. A person may also qualify if they are a non-abusive parent of a child who is or was subjected to domestic violence or extreme cruelty by a U.S. citizen or lawful permanent resident parent. The parent herself need not be abused.
Cancellation under VAWA can only be granted by an immigration judge once a battered immigrant has been placed in removal proceedings. If an immigration judge grants the application for cancellation of removal, then a green card is given. If the judge denies the application, then an order of removal will be issued. Given the potential for deportation associated with applying for cancellation of removal before an immigration judge, it is important that victims of abuse hire an experienced immigration attorney so they may effectively present a claim under VAWA if eligible. To qualify for cancellation under the Violence Against Women Act (VAWA), you must prove your physical residence in the U.S. for at least a three years, be of upstanding moral character, show extreme hardship to yourself if you are not able to remain in the U.S., and have been physically battered or been treated with extreme cruelty.
NACARA Special Rule Cancellation
To qualify for the NACARA Special Rule Cancellation, there are very specific requirements that must be met. You must be from certain countries and show that you have applied for asylum previously, or that you are qualified to apply for reopening previous removal documentation under the LIFE Act.
Voluntary departure allows you to leave the U.S. without damaging your reputation as an immigration or dirtying your immigration record with a deportation record. Having been deported will negatively affect your record and make it more difficult for you to apply to return to living in the U.S. in the future. This option is more of a last resort compared to the other options available to you.
A deferred action status will suspend your case to designate you as having no legal status, but also not allowed to be deported.This prevents the government from making attempts to deport you. Those who would normally qualify for the DACA immigration programs should consult with an immigration attorney to determine their eligibility for prosecutorial discretion.
Consult With An Immigration Attorney
It is important to seek consultation and representation from a licensed and experienced immigration attorney who has successfully handled removal and deportation cases. It is unwise to pursue these types of cases alone, since you need to understand all your rights, qualifications, and options available before approaching an immigration judge. If you do not have a full grasp on all available information about removability and deportation, you could lose any chance for being granted relief. Discuss your specific case with an immigration attorney. Putting it in their hands will give you the highest likelihood of a successful outcome to win you relief from removal or deportation.
Call (703-688-8279) or contact Johnson & Masumi P.C. for more information or to schedule a consultation with one of our immigration attorneys, who are experienced in removal and deportation defense.