Secretary Napolitano Announces Deferred Action Process for Young People Who Are Low Enforcement Priorities
Almost any violation of your status in the U.S. can potentially result in your being placed in removal proceedings. These violations include, but are not limited to:
When a person is charged with being removable, they are issued a charging document called a “Notice to Appear” (formerly called “Order to Show Cause”). This begins the process that requires the foreign national to appear before an Immigration Judge and demonstrate why he/she should not be removed (deported or excluded) from the United States.
The immigration attorneys at Garces, Grabler & LeBrocq are highly experienced and will analyze your case, and when legally possible, present a case in court to help you to remain in the U.S.
When an Immigration Judge has found that an alien is illegally present in the U.S., it does not mean that the person must be deported. Our attorneys have successfully litigated all types of Immigration Removal Proceedings.
The most common forms of relief to avoid removal are:
The immigration law lists various grounds by which a person in removal proceedings may apply for a waiver. All waivers require proof of “hardship” or “extreme hardship” or “extreme and extraordinary hardship” to close family members that are U.S. citizens or lawful permanent residents, if the alien were to be removed from the U.S.
For example, a person who has committed fraud or a material misrepresentation to obtain an immigration benefit or a benefit from a governmental agency (ie., motor vehicles) may apply for a waiver under INA Section 212(i) if his/her removal (deportation) from the U.S. would result in “extreme hardship” to his lawful permanent resident or U.S. citizen spouse or parents.
There are various waivers for criminal convictions, prior deportations, unlawful presence, 2-year foreign residency requirement for J visas, and health grounds.
An order from an Immigration Judge granting Cancellation of Removal has the effect of pardoning for immigration purposes the crime that formed the basis for the alien’s deportability.
An alien may only receive one grant of cancellation of removal in his/her lifetime. This order granting cancellation of removal allow the person to keep his/her lawful permanent residence. An order denying this relief is an order of removal (deportation) from the U.S.
To qualify for this relief, the person:
The following persons may not apply for cancellation of removal:
An Immigration Judge will balance certain positive factors and negative factors in determining whether an alien should be permitted to remain in the U.S.
Some positive factors include:
The negative factors include:
The positive factors must outweigh the negative factors for there to be a favorable decision by the Immigration Judge.
This law 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. if:
If a battered spouse is put into deportation or removal proceedings, he/she must demonstrate three years of continuous physical presence in the U.S. instead of ten years for cancellation of removal.
Time toward the three-year period would accrue even after he/she received the notice to appear for the removal hearing. This is different than the one that applies to other individuals where physical presence in the U.S. terminates upon service of notice or commission of a criminal act.
The applicant for cancellation must demonstrate good moral character and must not be inadmissible under:
The applicant must not have been convicted of an aggravated felony. The applicant must also demonstrate that removal would result in extreme hardship. This is a different standard of “hardship” than the other cancellations of removal.
While the battered spouse or child has to demonstrate “extreme hardship,” others need to show “extreme and unusual hardship” to a citizen or resident relative. Extreme hardship alone to the battered applicant would be enough.
Persons who were placed in deportation proceedings prior to April 1, 1997 as well as NACARA applicants may still be eligible for suspension of deportation. The suspension of deportation is more generous than Cancellation of Removal.
A deportable alien may apply for permanent residence through suspension of deportation if he is able to meet the following three (3) conditions:
A deportable alien or one subject to removal who is the parent, spouse, widow or child of a U.S. citizen may be eligible to apply to the Judge to adjust his/her status to that of a lawful permanent resident.
Aliens whose priority dates for permanent residence are “current” are also qualified to apply for adjustment of status. Aliens who obtained conditional permanent residence based upon their marriage, or the marriage of their alien parent, to a U.S. citizen who are unable to have their status adjust from conditional resident to that of permanent resident may, once being put under removal (deportation) proceedings, have their application renewed before an Immigration Judge.
Individuals who have a well-founded fear of persecution if they return to their home country may apply for asylum if their fear is based on any of the following grounds:
If a person is granted asylum, they are able to get work authorization and can, after one year, apply for permanent residence.
Withholding of removal is similar to asylum. But, it differs in 2 ways:
Article 3(1) — “No state Party shall expel, return or expedite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.” In making this determination, the US “shall take into account all relevant considerations including, where applicable, the existence in the state concerned of a consistent pattern of gross, flagrant, or mass violations of human rights.”
Article 3(2) — “It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.”
Once an illegal alien has been found qualified for legalization or amnesty by Department of Homeland Security (INS), the deportation hearing will typically be closed since the alien will have been given or is eligible to receive the legal right to remain in the United States. Those who have filed for LULAC or Meese (late filing amnesty cases allowed under a class action lawsuit settlement may have their cases terminated.
To have been eligible for amnesty, the alien must have:
Registry is another means of attaining lawful permanent residence in the U.S. It is available to aliens who have resided continuously in the U.S. since prior to January 1, 1972, who are persons of good moral character, who are not deportable on certain grounds, and who are not ineligible to become U.S. citizens. One is still eligible to apply for registry.
Anyone that has a lawful claim to U.S. citizenship may have their court case terminated.
A person may pay their own ticket and leave the U.S. within a time period designated by an Immigration Judge if they have not been convicted of a crime and has or can obtain a travel document. If the request for voluntary departure is made to the Immigration Judge before and Individual Hearing, the Immigration Judge has discretion to order voluntary departure up to 120 days.
After the Individual Hearing, if the person can show that he will pay his own ticket, has or can obtain a travel document and has been in the U.S. for at least one-year, has no prior grant of voluntary departure, the Immigration Judge may only grant up to 60 days of voluntary departure and the alien must post a Bond that is set by the Judge. The minimum bond is $500.00. This Bond must be paid within 5 days of the order.
Failure to pay the bond or to leave the U.S. by the date designated by the Judge converts the Order of the Judge to a Removal Order and the individual is barred from any relief and reopening of the case for a period of ten-years. The individual is also subject to a civil penalty of $1,000.00 to $5,000.00.
To speak with an experienced Immigration attorney immediately call us toll free at 1–800–923–3456 or contact us online to discuss your legal matter today.