Deportation and Removal

April 2, 2013

Deportation and Removal Defenses

A person in deportation proceedings (now called removal proceedings) can raise several defenses to the charge of removability and deportability. The government has the burden of proving by clear and convincing evidence that the individual is removable.

Even if the government can prove a foreign national is removable, we can still fight for you to stay in the United States. The following are the most common defenses and reliefs from a charge of removability.

Citizenship

A U.S. citizen cannot be deported from the U.S. The rules of citizenship can be complicated. You may be a U.S. citizen by law without knowing it. If any of your parents or grandparents are or were U.S. citizens, there is a chance that you may be a citizen by operation of law.

Generally, you are eligible to apply for naturalization if you have had your green card for at least five years (three years if you are married to a U.S. citizen). While most criminal convictions will prevent you from being eligible for U.S. citizenship, you may still be eligible for naturalization if you have maintained good moral character for the last five years.

Cancellation of Removal

This defense against removal is available for both legal permanent residents and non-permanent residents. It is also available for those with minor criminal record.

If you are a U.S. Permanent Resident (green card holder), you can apply for Cancellation of Removal if ALL of the following circumstances are present:

• you have been a permanent resident for at least 5 years;
• you have lived in the US continuously for 7 years after having been admitted to the U.S. (in any status);
• you have not been convicted of an aggravated felony.

Once cancellation of removal is granted, you are restored to legal Permanent Resident status previously held.

If you are not a U.S. Permanent Resident, the defense of Cancellation of Removal may still be available to you. The following criteria must be present in your case:

• you have been physically present in the U.S. for a period of 10 years;
• you have been a person of good moral character;
• you have not been convicted of certain crimes; and,
• exceptional and extremely unusual hardship will be caused to your U.S. Citizen or Legal Permanent Resident spouse, parent, or child if you are removed.

Waivers

There are other waivers available for those who have been deemed deportable or inadmissible.

212(h) Waiver: A 212(h) waiver may excuse you for certain crimes if you can prove that removing you from the United States would cause extreme hardship to a U.S. citizen or permanent resident spouse, child or parent.

212(c) Waiver: If you are a permanent resident and have a criminal conviction based on a plea of guilty made before April 24, 1996, you may still ask for a waiver of the conviction and remain in the U.S. To apply for this waiver, you must:

• be a permanent resident (have a green card);
• have lived in the U.S. lawfully for 7 years;
• have not served 5 years or more in prison for an aggravated felony.

Asylum, Withholding of Removal and Relief under the Convention Against Torture

Asylum: You may be eligible to apply for asylum if you can establish that you will be persecuted or severely harmed in your country because of your race, religion, nationality, political opinion, or membership in a social group (such as a clan, family, homosexuals, etc.). You must apply for asylum within one year of arrival in the U.S. unless you show extraordinary or changed circumstances.

You cannot be granted asylum if you were convicted of an aggravated felony or a particularly serious crime that indicates you might be a danger to the community, or if you participated or assisted in the persecution of others.

Withholding of removal: You may be granted withholding of removal if you show that your life or freedom will be threatened in your country due to your race, religion, nationality, political opinion or membership in a particular group. You may apply for withholding of removal even if you have an aggravated felony conviction, unless you were sentenced to five years or more of imprisonment.

Relief under the Convention Against Torture: You may be eligible for relief under the Convention Against Torture if you have a well-founded fear that you will be tortured if you return to your country. Criminal convictions are not a bar.

Adjustment of Status

You may be able to apply for permanent residency (a green card) if you:

• are married to a U.S. citizen, or
• have a U.S. citizen child over 21 years of age.

You may be ineligible to get a green card if you were convicted of a crime involving moral turpitude (unless it had a possible sentence of one year or less and you were actually sentenced to six months or less), a drug crime (other than simple possession of 30 grams or less of marijuana), or two crimes where you received a sentence of 5 years or more.

You may still be eligible for adjustment of status even if you are not married to a US citizen or have a US citizen child over 21 years old if you have an approved immigrant petition, the visa is currently available, are admissible, have entered the U.S. lawfully or are covered under the provision of 245(i).

VAWA (Violence Against Women Act)

Abused spouses and children who have been abused by a U.S. citizen or permanent resident spouse can file a petition themselves for permanent residency. The consent or knowledge of the abuser is not required for this petition to proceed.

Prosecutorial discretion

The Department of Homeland Security has announced that to conserve its resources and concentrate on enforcement priorities, it will refrain from filing and pursuing removal proceedings against persons who have not committed any crime, not a suspected terrorist, not guilty of immigration fraud, or previously removed from the U.S. Even if a removal case has already been filed against you, the government may still administratively close it. You will have a good case for prosecutorial discretion if you are:

• a member of the US armed forces, a spouse or child of such member;
• have been in the U.S. for more than five years since childhood;
• over the age of sixty-five and has been present in the U.S. for ten years;
• have been a permanent resident for at least ten years and you have a single conviction for a non-violent crime;
• suffering from a mental or physical condition;
• a very long resident of the U.S. with immediate U.S. citizen relatives, compelling ties, and contribution to the U.S.

Post-conviction relief

If you are being deported due to a criminal conviction, a defense strategy is still available for you. Some criminal convictions are a result of an agreement with the prosecutor to enter a guilty plea in exchange for no jail time. However, some of these pleas still have immigration consequences but the defendant is not advised of these consequences. If this is your situation, you may be able to reopen your criminal case and ask the judge to vacate your conviction and enter into another plea which will not result in a ground for removal. If the conviction is changed, the ground for removal will no longer exist. We will work with a criminal attorney to secure a conviction without an adverse immigration consequence.

Voluntary departure

Voluntary departure is also considered a relief to deportation. The court will allow you to stay in the country for up to 120 days if you promise to leave the U.S. at your own expense. This is not available for those with a felony conviction. Although it requires you to leave the U.S., the advantage of seeking voluntary departure over deportation is that it will be easier for you to return to the U.S. in the future.

Each deportation or removal case is different and must be carefully analyzed for available defenses and reliefs. There are many factors that spell the difference between winning a losing a case.

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