Removal and Deportation
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 a lawyer; 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.
Defenses to Deportation/Relief From Removal
There are a number of possible avenues by which to avoid deportation in a given situation. The determination of whether a person qualifies to use one of these defenses or other forms of relief is very technical and is something your attorney will be prepared to evaluate. You should contact NPZ Law Group to discuss your specific situation. For now, here is some basic information on a few of the ways in which removal may be avoided:
- Waivers of inadmissibility and removal: One common reason for removal is that the person was inadmissible at the time he or she entered the U.S. If such a person can show that removal would result in extreme hardship to him or herself or a close family member, then a waiver may be granted allowing the person to remain in the U.S. The family members must be lawful permanent residents or citizens of the U.S. (INA §212).
- Cancellation of removal: Scroll down this page to read about cancellation of removal for permanent and nonpermanent residents.
- Adjustment of status: A deportable alien who is the parent, spouse, widow or child of a U.S. Citizen may be eligible to apply for adjustment to the status of lawful permanent resident (LPR). Those who obtained conditional permanent residence based on marriage, or the marriage of a parent, and later had their status terminated may be eligible to renew their applications for adjustment of status to permanent residence once deportation proceedings are underway.
- Asylum: You may be eligible to apply for asylum if you fear harm in your country because of your race, religion, national, actual or suspected political opinion, or membership in a social group (such as a clan, family, homosexuals, women opposed to certain practices, etc.). You cannot obtain asylum if you have a conviction for an aggravated felony on your record.
- Withholding of removal: Similar to asylum but more difficult to obtain. You must show that your life or freedom would be threatened in your home country due to your race, religion, nationality, political opinion or membership in a particular group.
- Registry: You can get a green card through registry if you came to the U.S. before January 1, 1972, and have lived here ever since. You must have good moral character and not have certain criminal convictions that would prevent you from being admitted to the U.S.
- Voluntary departure: If no other defenses or forms of relief are available, the alien should apply for voluntary departure. This avoids stigma and does not prevent the person from seeking legal reentry to the U.S. at a later time. Most people are eligible for voluntary removal if three conditions are met: (1) the deportation is not based on aggravated grounds; (2) the applicant can afford to pay for the departure; and (3) good moral character was exhibited for the last five years.
Cancellation of Removal for Permanent Residents and Nonpermanent 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 nonpermanent resident from the U.S. who:
- Has been physically present in the U.S. for a continuous period of 10 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 cannot be out of the U.S. for more than 90 days at a time, or 180 days in the aggregate, during the 10-year period.
- Has been a person of good moral character for 10 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.
If you or a member of your family has a case before the Executive Office of Immigration Review (EOIR), call an Immigration Removal Defense Attorney Today.
To schedule a consultation, please feel free to contact the VISASERVE Team and the NPZ Law Group by e-mail or by calling the Firm at 201-670-0006. Our main office is in Ridgewood, New Jersey. We also have an office located in New York City. We also have affiliated offices located in Ohio, India and the Netherlands Antilles.
Check the status of your case with the U.S. Department of Homeland Security, Citizenship and Immigration Services ("USCIS").
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