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Deportation Defense

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Relief for Deportation

Deportation and exclusion were combined into a “removal” process as of April 1997. Aliens subject to deportation, removal or exclusion can seek relief or protection through a number of forms of relief including asylum, withholding of removal, adjustment of status, cancellation of removal, suspension of deportation, voluntary departure and waivers of inadmissibility. This article summarizes the available forms of relief. Some of the forms are addressed in more detail in separate articles.

If you are an undocumented immigrant, and have been arrested or otherwise placed in removal (deportation) proceedings, applying for a green card through a family member might be the last thing you’d think you would be eligible for. After all, if you were qualified for a green card, wouldn’t you have applied for it already?

Nevertheless, it sometimes happens that an undocumented (sometimes called “illegal”) immigrant is eligible to apply to adjust status through a U.S. citizen or permanent resident family member regardless of having been placed in removal proceedings. The usual reasons include that the person didn’t previously realize that he or she was eligible for a green card, or the timing just happened to work out so that his or her eligibility (perhaps due to a recent marriage or current “priority date”) coincided with an arrest by U.S. immigration authorities.

If you are facing removal (formerly known as deportation) proceedings — meaning that the immigration authorities are trying to expel you from the United States — but you fear returning to your home country, one option may be for you to apply for asylum as well as withholding of removal.

Asylum is relief allowing an alien to remain in the United States under legal status because he or she has suffered past persecution in his home country or country of last habitual residence, or because he has a well-founded fear of future persecution in his home country or country of last habitual residence and such persecution is based on race, religion, nationality, political opinion or membership in a particular social group.

If you are a lawful permanent resident (LPR or green card holder) and find yourself in removal proceedings because of a criminal conviction, you may be eligible for cancellation of removal for lawful permanent residents.

Once you (and the Immigration Judge) determine that you meet the basic eligibility criteria to apply for cancellation of removal for lawful permanent residents, you will have to actually apply and present your case before the Immigration Court. The Immigration Judge will determine whether or not you will retain your green card or be issued an Order of Removal.

If you are a foreign-born person who has been living in the U.S. without legal status for a long time, and you have been placed into removal (deportation) proceedings, you may be eligible for what’s called “Non-LPR Cancellation of Removal” and a green card. The conditions for this form of relief from deportation include that:
1. You have been living (“continuously physically present”) in the U.S. for at least ten years.
2. Your being removed (“deported”) from the U.S. would cause “exceptional and extremely unusual hardship” to your qualifying relative(s), who is (or are) U.S. citizens or lawful permanent residents (LPRs);
3. You can show that you have “good moral character”; and
4. You have not been convicted of certain crimes or violated certain laws.
However, even if you meet all of the basic requirements, the immigration judge still has a lot freedom (“discretion”) to decide whether or not to approve an application for cancellation. Therefore, it is important to make clear to the immigration judge that you are honest, sincere, and really deserve to be allowed to stay in the U.S. and receive a green card.

A big part of the process of convincing the judge is providing as much evidence as possible to show that you meet the basic requirements and also “deserve” the benefits of cancellation. But if there is something about your case that you think makes you ineligible or might make the judge decide not to exercise his or her freedom in your favor, you should definitely see a lawyer. (It’s a good idea to see a lawyer in any case, for help preparing a complete application and set of documents.)

Nationwide, immigration judges can approve only 4,000 cancellation applications per year from non-LPRs (people without green cards). The cap is often reached very quickly. This means that even if you appear to have an approvable cancellation application, the immigration judge will not be able to make a decision on your application until a “number” (in essence, a green card) becomes available again.

Under section 212(a)(6)(C)(i) of the Act, an alien who, by fraud or willful misrepresentation of a material fact, seeks to procure, has sought to procure, or has procured a visa, other documentation, or admission into the United States or other benefit provided under the Act, is inadmissible. However, the Attorney General (the immigration service) may waive the application of section 212(a)(6)(C)(i) of the Act in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of the alien would result in extreme hardship to the citizen or lawful resident spouse or parent of the alien. INA 212(i).

If you were denied admission to the United States because of your criminal history, you may be eligible to file a waiver application. Section 212(h) of the I.N.A. identifies certain criminal grounds that allow for a waiver application. These include crimes of moral turpitude, prostitution, and a single offense of possession of 30 grams or less of marijuana. Waivers are not allowed for murder, torture, aggravated felonies or for violations of any other law regarding controlled substances.
If your criminal ground of inadmissibility allows a waiver application, you are eligible if one of the following applies to you:
• More than 15 years has passed since you committed the crime and applied for admission to the United States; or
• You have a U.S. citizen or lawful permanent resident spouse, fiancé, child, or parent who will experience extreme hardship if you are denied admission.

If you are applying for a waiver based on the passage of 15 years, you will need to demonstrate that you are not a threat to U.S. safety, security, or welfare, and that you have rehabilitated. The officer will have discretion in deciding upon these factors. Your chances of success will be greater if you have not committed any other crimes in your home country during the 15-year period and you actively participated in and completed programs specific to rehabilitation.

If you are applying based on the hardship to a qualifying relative, the factors will be the same as those for waivers of unlawful presence and misrepresentation. The only difference is that U.S. citizen or lawful permanent resident children count as qualifying relatives for criminal grounds of inadmissibility.

If you are a legal permanent residence of the United States and have been placed in removal proceedings due to criminal activity, you could seek a waiver of your convictions and avoid deportation. Your eligibility to apply for a waiver is based on the type of crime you committed and the date on which you were convicted. Certain lawful permanent residents can apply for discretionary relief under section 212(c) of the Immigration and Nationality Act.

The requirements to apply for and receive a 212c waiver include:

  • You pled guilty to the crime prior to April 1, 1997
    • You have been a lawful permanent resident for at least 5 years
    • You are returning to a lawful, unrelinquished residence of at least 7 consecutive years
    • You are not subject to deportation or removal on the grounds of terrorism or national security
    • You are not unlawfully in the US due to a previous immigration offense
    • You have not been convicted of a firearms offense or an aggravated felony offense for which you served over 5 years

You are ineligible to receive a 212c waiver if you have departed and are currently outside the US, you have illegally returned after deportation or removal, or you are present in the US without having been admitted or paroled.

It is important to note that the 212c waiver is a discretionary. Therefore, even if you are eligible to apply for a 212c waiver, the Immigration Judge will decide on a case-by-case basis whether or not to grant you this relief. The Judge will look closely at the balance of positive factors versus negative factors in your application. Positive factors include family ties in the US, long time residence in the US, hardship to you and your family if you were deported, property ownership, business ties, demonstrated value and service to the community, genuine rehabilitation and evidence that you are person of good character Negative factors can include the nature, seriousness and recency of your criminal record and evidence that you are a person of bad moral character.

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