Removal / Deportation Defense

Removal / Deportation Defense

If you are facing the threat of deportation, Cella & Associates can help you! Deportation is the process when a non-citizen alien is forced to leave the United States. Immigration officials may use the term deportation and removal interchangeably.

A grant of relief from deportation/removal allows a non-resident alien to stay in the United States. Relief may be granted in two categories; discretionary relief and administrative judicial relief. Discretionary relief may involve certain circumstances related to the alien, such as persecution in the home country. Administrative relief pertains to an appeal of a removal decision. This may include motions, stay of removal, administrative appeal, and judicial review. Each relief category has specific factors and eligibility factors.

The following are the different types of relief allowed in the United States for Deportation/Removal.

Citizenship (Forms N-400, N-600):

Some aliens are United States citizens without knowing it. The following are two instances where this could happen:

  • Birth in the United States
  • Having a parent or grandparent who was born in the United States or who became a U.S. citizen before you turned 18 years old.

In such cases, removal/deportation proceedings would be terminated.

Adjustment of Status (Form I-485):

Adjustment of status is when an individual has an immediate relative petition the USCIS for their lawful permanent resident status,even while the alien is in removal/deportation proceedings. Another way adjustment of status may occur is if the individual is the primary or derivative beneficiary of a family-based or employment-based petition, stemming from an approved labor certification and/or PERM case that was filed on or before April 30, 2001.

An alien may also be eligible to apply for registry if they can prove that they have resided in the United States continuously since at least January 1, 1972 and are of good moral character.

Cancellation of Removal for Certain Permanent Residents (Form EOIR 42-A):

Even a lawful permanent resident (“LPR”) of the United States may be removable/deportable if he or she violated certain immigration and/or criminal laws. However, such a person may be able to keep his or her LPR status in the following instances:

  • the applicant has been a legal permanent resident for at least five years;
  • the applicant has lived in the United States continuously for at least seven years after having been legally admitted; and
  • the applicant has not been convicted of certain criminal offenses.

A successful cancellation of removal petition would yield the permanent resident being allowed to keep their legal permanent resident status in the United States.

Cancellation of Removal for Certain Non-Permanent Residents (Form EOIR 42-B):

An alien in removal/deportation proceedings may be eligible to apply for “10-year Cancellation of Removal” for non-permanent residents if:

  • The applicant has lived in the United States continuously for at least the last ten years;
  • The applicant is a person of good moral character; and
  • The applicant has a US and/or legal permanent parent, spouse, and/or child who would suffer “exceptionally and extremely unusual hardship” in the event that the alien was to be removed from the United States.
    While the case is pending, the alien will be eligible to receive an employment authorization document (“EAD”), social security number and driver’s license.

A successful cancellation of removal petition would yield the permanent resident being allowed to become a legal permanent resident in the United States.

Suspension of Deportation for Lawful Permanent Residents Under INA §212(c)(Form I-191):

A lawful permanent resident who is in removal/deportation proceedings for having been convicted of crime before April 1, 1997 may be eligible for a waiver under INA §212(c).

A waiver under §212(c) involves a “balancing of the equities.” In other words, the Immigration Judge (“IJ”) would weigh the individual case’s positive factors against the negative factors to determine if the individual should be permitted to remain in the United States as a lawful permanent resident (“LPR”).

A successful cancellation of removal petition would yield the permanent resident being allowed to keep their legal permanent resident status in the United States.

Cancellation of Removal and Adjustment of Status Under the Violence Against Women’s Act (VAWA)(Form I-360):

An alien and/or alien child who has been subjected to abuse and/or extreme cruelty by a U.S. citizen or legal permanent resident parent or spouse, may qualify for cancellation or removal and/or adjustment of status to lawful permanent resident without the assistance or knowledge of the abusive spouse or parent, even if the victim (or his or her parent) is divorced or widowed. Both woman and men can invoke this protection.

A successful cancellation of removal petition would yield the permanent resident being allowed to become a legal permanent resident in the United States.

Political Asylum, Withholding of Removal & Article III of the U.N. Convention Against Torture (CAT) (Form I-589):

An alien may qualify for political asylum or withholding of removal and/or protection under the U.N. Convention Against Torture if the alien can establish that they have a reasonable fear of persecution by the government of their home country and/or group(s) that their government cannot or will not control.

To be granted political asylum or withholding of removal, the alien must establish that such persecution would be on the basis of race, religion, membership in a particular social group, political opinion and/or nationality.

If successful in political asylum the alien will be able to adjust his or her status to lawful permanent resident. If successful in withholding or removal or protection under the U.N. Convention Against Torture, the alien will be permitted to remain in the United States indefinitely with employment authorization.