Removal and Deportation
Removal/Deportation Proceedings
Removal hearings are conducted to determine whether certain aliens are subject to removal from the country. The distinction between exclusion and deportation proceedings has been eliminated, and aliens subject to removal from the United States are now all placed in removal proceedings. Thus, the removal proceeding is now generally the sole procedure for determining whether an alien is inadmissible, deportable, or eligible for relief from removal.
The Department of Homeland Security (DHS), which absorbed the functions of the Immigration and Naturalization Service (INS), is responsible for commencing a removal proceeding. If the DHS alleges a violation of immigration laws, it has the discretion to "serve" the alien with a charging document, known as a Notice to Appear. This document orders the individual to appear before an Immigration Judge, and advises him or her of, among other things:
- Nature of the proceedings against the individual;
- Individual's alleged acts that violated the law;
- Individual's right to an attorney; and
- Consequences of failing to appear at scheduled hearings.
Removal proceedings generally require an Immigration Judge to make two findings: (1) a determination of the alien's removability from the United States, and (2) whether the alien is eligible for a form of relief from removal.
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Cancellation of Removal for Permanent Residents and Non-Permanent Residents
INA §240A(a) allows the Attorney General (usually an Immigration Judge or the Board of Immigration Appeals) to cancel the removal of a lawful permanent resident from the U.S. if:
- He has been an LPR for a minimum of five years;
- He has resided continuously in the U.S. for a minimum of seven years after being admitted to the U.S. in any status (prior to the institution of removal proceedings);
- He has not been convicted of an aggravated felony;
- He is not inadmissible from the U.S. on security grounds.
The following classes of persons are ineligible for cancellation of removal: (1) Certain crewmen; (2) Exchange visitors (in "J" status) who received medical training in the U.S.; (3) Persons who have persecuted others; (4) Persons who have previously been granted cancellation of removal, suspension of deportation or relief under §212(c); and (5) Persons who committed certain criminal offenses prior to the accrual of the required seven years.
INA §240A(b) allows the Attorney General (usually an Immigration Judge or the Board of Immigration Appeals) to cancel the removal of a non-permanent resident from the U.S. who:
- Has been physically present in the U.S. for a continuous period of ten years prior to the institution of removal proceedings. (This requirement is not applicable to persons who have served a minimum of 24 months in the U.S. Armed Forces, was present in the U.S. during his enlistment or induction, and is either serving honorably or has received an honorable discharge.) "Continuous" means that the person can not be out of the U.S. for more than 90 days at a time, or 180 days in the aggregate, during the ten-year period.
- Has been a person of good moral character for ten years;
- Is not inadmissible under §212(a)(2) or (3) (criminal and security grounds) or deportable under §237(a)(1)(G) (marriage fraud), (2) (criminal grounds), (3) (failure to register and falsification of documents) or (4) (security and related grounds).
- Whose removal would result in exceptional and extremely unusual hardship to his/her spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
The immigration attorneys of NPZ Law Group are skilled at helping businesses of all types and sizes meet their workforce needs by hiring skilled foreign workers. To discuss your removal and deportation needs with an experienced immigration lawyer, please contact our law firm today.
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