Deportation and Removal Defense
If you or a loved one are subject to removal (formerly called deportation) from the US, there are several potential solutions that you might be able to pursue depending on the circumstances of your case. A brief discussion of inadmissibility and removability, along with a handful of the most commonly pursued options for individuals facing removal or a determination of inadmissibility to the US, are set forth below. If you would like to speak with a New York immigration lawyer about deportation and removal defense, please feel free to contact us.
Inadmissibility and Removability
An individual may be deemed inadmissible to the US for a number of reasons, including criminal activity, public health considerations, perceived threats to national security, the individual’s likelihood of becoming a public charge, inability to obtain a labor certification if one is necessary, undocumented entry to the US, immigration status violations, previous removal or unlawful presence in the US, ineligibility for citizenship, and failure to possess a valid immigrant or nonimmigrant visa.
If an individual is inadmissible at the time she enters the US or seeks to adjust her status to permanent resident status in the US, she may be subject to removal. An individual may also be removable if she violates the terms of her immigration status, or violates the law or the conditions of her original entry to the US. Criminal acts that may give rise to removability include aggravated felonies, drug offenses, crimes of moral turpitude, espionage, sabotage, domestic violence, stalking, child abuse, visa fraud and alien smuggling.
Cancellation of Removal or Suspension of Deportation
Cancellation of removal (formerly known as suspension of deportation) is a remedy available to some individuals residing in the US pursuant to valid immigrant or nonimmigrant visas. This remedy may be exercised when an individual has been placed in removal proceedings before the US Executive Office for Immigration Review. For a permanent resident (green card holder) to qualify for cancellation of removal, she must have been a lawful permanent resident for at least five years, have resided in the US under any status for at least seven years, and she must not have been convicted of an aggravated felony during those seven years in the US. For an individual who is not a permanent resident to qualify for cancellation of removal, she must have continuously resided in the US for at least ten years, she must have been a person of good moral character throughout that time, she must not have been convicted of any crime that would make her inadmissible or removable, and she must establish that her removal would result in exceptional and extremely unusual hardship for the individual’s spouse, parent or child who is a US citizen or permanent resident. Cancellation of removal under the Violence Against Women Act may also be available to women who have been battered or subject to extreme cruelty by qualifying relatives under some circumstances. Individuals who are granted cancellation of removal by an immigration judge will be eligible for permanent resident (green card) status. Cancellation of removal is difficult to achieve and can only be granted by an immigration judge.
Asylum and Withholding of Removal
Withholding of removal may be available to asylum applicants who are in removal proceedings in the US. Individuals who are subject to removal and wish to seek asylum in the US may request withholding of removal by filing Form I-589, Application for Asylum and Withholding of Removal. Withholding of removal cannot be granted by an asylum officer but must instead be issued by an immigration judge. To qualify for withholding of removal under such circumstances, an individual must show that she has been persecuted or has a well-founded fear of persecution in her home country due to her race, religion, nationality, political opinion or membership in a particular social group (also the standard for being granted asylum in the US). Unlike asylum, an individual who is granted withholding of removal is not eligible to obtain a green card and generally cannot re-enter the US if she leaves the country; however, she may remain in the US and obtain work authorization here. Withholding of removal may be an attractive option for individuals in removal proceedings who would qualify for asylum but who failed to petition for asylum within one year after arriving in the US as required by law.
Deferred Action and the Mini-DREAM Act
Deferred action under the “Mini-DREAM Act” is a limited remedy created by an executive order of the Obama administration that allows qualifying individuals to defer removal and apply for work authorization in the US. Deferred action is available to individuals who were under the age of 30 on June 15, 2012, have resided in the US for at least five years, came to the US when they were under the age of 16, are presently in the US, and are presently in school or have obtained a high school diploma, GED or honorary discharge from the military. To qualify for deferred action under this program, an individual must not have been convicted of a felony, or a “significant” misdemeanor, or two or more misdemeanors. An individual can apply for deferred action under this program even if she is not presently in removal proceedings. Benefits are available on a case by case basis in two-year increments, and qualifying individuals may re-apply for deferred action every two years.
If an individual is subject to removal, she may in some instances opt to pursue an official voluntary departure from the US. Generally an individual who has departed voluntarily from the US will have an easier time securing a visa to travel to the US in the future than would an individual who has been forcibly removed from the US, and she will not be subject to the ten-year re-entry ban that applies to individuals who have been forcibly removed. To qualify for voluntary departure, an individual must generally have been in the US for at least one year before the government sought removal; be of good “moral character” and not be removable on national security or aggravated felony grounds; and have the willingness and financial resources to leave the US voluntarily. Voluntary departure may be requested prior to the conclusion of removal proceedings or at the conclusion of removal proceedings, and requirements for voluntary departure may vary depending on the point in the proceedings at which the individual requests voluntary departure.
In some cases, the government may elect not to pursue removal for a variety of reasons. If the government exercises its prosecutorial discretion to pursue removal, the individual may be allowed to stay in the US and be granted work authorization. However, individuals permitted to stay as a result of prosecutorial discretion generally do not qualify for other benefits such as the right to re-enter the US after traveling abroad.
Waiver of Inadmissibility
Individuals who are deemed inadmissible to the US when applying for a visa may in some cases apply for a waiver of grounds of inadmissibility and secure a visa once inadmissibility grounds have been waived. To apply for such a waiver, the individual must file Form I-601, Application for Waiver of Grounds of Inadmissibility, with USCIS. All health related grounds for inadmissibility may be waived for individuals seeking temporary visas and most may be waived for immigrant visa applicants. Inadmissibility related to criminal behavior may be waived in some instances, depending on the nature of the offense. Grounds for inadmissibility based on visa fraud are frequently waivable, as are grounds for inadmissibility based on unlawful presence and prior removal or deportation. In many instances, whether a waiver is available to an individual who has been deemed inadmissible depends on the facts of the case.
If you would like to speak with a New York immigration lawyer about obtaining a waiver or seeking relief from removal or deportation from the US, please feel free to contact us.