In removal cases, different rules apply, depending on when and where you were caught by immigration officers. If you were caught at the border when you were trying to cross into the country (or if you entered the country illegally and cannot prove that you have been here for more than two years) you can be charged as an arriving alien. That classification means that you can be charged with removal based on the grounds of inadmissibility discussed above. It may also affect your eligibility for release from detention on bond and your eligibility to apply to the immigration judge for permission to stay in the United States.
People who are arrested after they have been in the United States for a while are usually charged with a ground of deportability. The list of reasons that make someone deportable is very similar to the list of grounds of inadmissibility. But because the lists are slightly different, sometimes someone might be deportable but not inadmissible, or the other way around inadmissible but not deportable. If you are deportable but not inadmissible, you might be able to immigrate (or re-immigrate) in immigration court to solve your problem with deportability. If you are inadmissible but not deportable, the government might not be able to deport you, even though it would be able to keep you from coming back to the country if you ever left. You should consult an immigration attorney with experience in these types of issues to advise you about the options in your case.
The judge has two basic decisions to make in every immigration removal case. First he has to decide if the government is right about the reasons it wants to remove you from the country. For example, the government might want to deport you because you have a criminal record; but not all crimes make you deportable. Sometimes the government even tries to deport U.S. citizens by accident. You can tell your side of the story to the judge if you think that the government’s reason for wanting to deport you is wrong. So the first part of your case is having the judge decide if there is any reason to deport you.
If the judge decides that you are deportable, then he needs to move on to the second part of the case and decide if there is any way for you to get relief from deportation. There are different kinds of relief from deportation that the judge could give you. If you would be eligible to apply for an immigrant visa or green card through the regular processes, you might also be able to apply to the immigration judge for a green card or reapply for a green card, if you already have one. If you are afraid for your life or safety in your home country for certain reasons, you might be able to ask the judge for asylum. If you have been in the United States for a long time, you might also be eligible to apply for cancellation of removal.
You might be eligible for one of these types of relief from deportation, or you might be able to apply for all of them. If it looks like you qualify for some type of relief from removal, the judge will give you a chance to file an application for that type of relief. There are different application forms and different documents that you will need to give the judge for each type of relief you want him to consider.
It is very important to document your case completely for the judge; it is difficult to win a case on your testimony alone. An experienced immigration attorney will know what the judge is looking for and will help you put together all the documents that could be important for the judge to make his decision.
A good attorney will also help prepare you and your witnesses for what to expect when you testify in court. Most people are nervous when they testify in court; and nervous people do not always make the best witnesses. That is why it is important for witnesses to know what to expect. Proper preparation will help them keep their composure and tell the judge what he needs to know.
In the end, the judge will decide whether you get to stay in the country or whether you must go. If you are allowed to stay, you will be given a green card or some sort of protected status, like asylum. If you must leave the country, the judge might allow you to leave on your own which is called a voluntary departure or he might order that the government send you back to your country a deportation. The difference between voluntary departure and deportation can be important in some cases. If you are deported, you will not be allowed to get a visa to return to the United States for a long time. On the other hand, a voluntary departure will not necessarily affect your ability to get a new visa to come back to the country legally in the future. Your eligibility to return to the United States legally after a voluntary departure involves many technical provisions of law, and you will need to consult an experienced immigration attorney.
If you have been deported or removed from the United States, you may need a deportation waiver in order to be able to re-enter. Whether or not you need a deportation waiver depends on how and how long ago you were deported. A deportation waiver is needed for both non-immigrants, who seek to enter the US to visit for temporary employment, and immigrants, who seek to live and work permanently in the United States with a green card. Applicants who are also inadmissible under other grounds of inadmissibility (such as a prior visa overstay) will likely need to submit the deportation waiver along with an inadmissibility waiver.
Once a foreign national has been deported or removed from the United States, he or she will be unable to return without a deportation waiver for 5, 10 or 20 years depending on the circumstances surrounding the deportation. Once that time limit has expired, however, the applicant should not need to file a deportation waiver in order to re-enter the US.
Whether applying for an immigrant visa at a US consular post abroad or attempting to obtain a green card in the US using the adjustment of status process, certain applicants who have previously been deported will need a deportation waiver. For immigrant visa applicants, the deportation waiver is filed on form I-212 (Application for Permission to Re-Apply for Admission into the United States after Deportation or Removal). Unlike with 601 waivers (or hardship waivers), where the applicant must usually show that failure to grant the waiver would result in an extreme hardship to a US citizen or lawful permanent resident spouse or parent, whether or not to grant the I-212 deportation waiver is solely at the discretion of the immigration officer. The applicant need not be related to anyone in the US and need not establish that a denial would result in hardship. Instead, an applicant’s waiver attorney must create a waiver package that convinces the immigration official that the waiver should be granted.
Non-immigrant visa applicants who have a prior deportation on their record must apply for permission to re-enter pursuant to the schedule outlined above. Unlike immigrant visa applicants, however, most non-immigrant applicants file the deportation waiver using the information 212(d)(3) waiver process. The 212(d)(3) waiver process is used by non-immigrants to waive almost all grounds of inadmissibility. Like with the I-212 waiver, there is no structured format for approval of a waiver. Instead, the adjudicating officer determines whether or not the waiver should be granted as a matter of discretion. Unlike the I-212 waiver, however, non-immigrant visa applicants who are applying for deportation waivers must also prove to the immigration official that they have no immigrant intent. Because this person may already have a history of staying in the United States for more than just brief periods of time, preparation of a 212(d)(3) deportation waiver requires the waiver attorney to focus on the applicant’s ties to the home country to prove that he or she will return home once the temporary visa has expired.
Voluntary Departure is now a formalized administrative remedy with severe limitations and is not to be granted by Department of Homeland Security (DHS) offices unless specifically requested. If it appears that removal proceedings cannot otherwise be avoided, before removal proceedings are commenced with the filing of the NTA, the alien may request the DHS district director (or local office) to grant voluntary departure, which means that DHS notifies the alien of a specific date (not a time frame) by which the alien may leave the country without being removed.
To be eligible:
A criminal defendant who is not a citizen of the United States faces consequences that go beyond the penal sanction imposed, including possible denial of a visa or resident status, mandatory detention in an immigration facility, ineligibility for American citizenship, and even permanent deportation from the United States.
In the past 15 years, immigration law has become increasingly tough on crime, and eligibility criteria for immigration waivers have been tightened. More people are subject to deportation for more types of crimes, and fewer individuals are eligible for criminal waivers.
A non-American citizen defendant who enters a plea without understanding the immigration consequences of such a plea has not made a knowing plea. The same can be said for a defendant who chooses to go to a jury trial without having weighed the immigration consequences of a guilty verdict versus a plea to a lesser offense or sentence.
Now more than ever, it is important to be cognizant of unfavorable immigration law consequences attached to a plea, and to fashion a plea that avoids such consequences.
Knowledge of immigration law becomes strength in effective criminal defense, and ultimately enhances Mona Shah &Associates smart representation and reputation, along with the issue of good strategy.
Deportation Defense & Waivers
There are two lists of reasons that someone can be refused a visa, denied permission to enter the United States, or removed from the country. Reasons on the first list are called grounds of inadmissibility. They apply to people who are trying to get a visa whether at a U.S. embassy or consulate, or through adjustment of status. They also apply to people who are trying to use their visa or green card to enter the United States through an airport, seaport or land border crossing. They even apply to certain people who are already inside the country if they did not enter legally.
The second list applies to people who are already inside the country. Things on the second list are called grounds of deportability. The grounds of deportability apply to people who are here legally and to people came here legally but no longer have legal status. If the government decides that there is a ground of deportability that applies to someone, they will start removal proceedings against that person in immigration court. Removal is a legal term that replaced deportation in 1996. There are some very technical legal distinctions between removal and deportation, but most of those differences are not important to understanding the removal process in general terms.
What things make someone inadmissible?
There are many grounds of inadmissibility, including certain diseases, lack of financial support or an ability to support yourself, past immigration violations, criminal convictions, misrepresentations (lies or fraud) made to the U.S. government, and others. Some can be forgiven (“waived”); others cannot. The most common grounds of inadmissibility that can be waived are misrepresentations and criminal convictions. Two examples of misrepresentations that can make you inadmissible are a lie that you told on a visa application or using someone else’s visa or greencard to enter the country. You can only qualify for a waiver of a misrepresentation if you have a parent, spouse or child who is either a U.S. citizen or lawful permanent resident. To actually get the waiver, you need to show that those family members would suffer extreme hardship if you were not given your visa or allowed to enter the country legally.
What criminal convictions make someone inadmissible?
There are many different kinds of criminal convictions that can lead to inadmissibility. Violent crimes and drug crimes make it very difficult or impossible to get a visa. Theft and fraud crimes are also very serious and may make you inadmissible. It is important to realize that serving your criminal sentence and completing probation does NOT make a difference in how the conviction affects your immigration status. Sometimes admitting criminal activity can make you inadmissible, even if you were never arrested or charged with a crime. If you are facing criminal charges or have a criminal conviction it is important to consult with an experienced attorney versed in both criminal defense and immigration issues.
What can you do if the government says you are inadmissible?
Some grounds of inadmissibility can be excused or waived by the government. Some cannot. The requirements for getting a waiver depend on the ground of inadmissibility that applies in your case. If any of the factors mentioned above apply to your case, you should talk to an immigration attorney with experience in these types of cases BEFORE you contact U.S. immigration authorities. If you have already applied for your visa and an immigration officer thinks that you are inadmissible, he/she will tell you. He should also tell you if you are eligible for a waiver; but immigration officers are human and they make mistakes. If you have been told that you cannot be given a visa, talk to an immigration attorney about your case to see if the government made a mistake.
There are different types of waivers available for different grounds of inadmissibility. Your eligibility for a waiver will depend on varying factors such as your personal history that you have living in the United States, any family members you have here, how recently your immigration violation or conviction occurred, and others. An immigration attorney with experience on waiver cases will be able to tell you about all of the factors that will be considered in your case and will be able to put together the strongest possible application for you.
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:
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 (See below.) or relief under 212(c); and (5) Persons who committed certain criminal offenses prior to the accrual of the required seven years.
Positive factors include:
(1) Family ties within the U.S.; (2) Long time residency in the U.S.; (3) Hardship to person and immediate family; (4) Service in U.S. Armed Forces; (5) Employment history; (6) Ownership of property and business ties; (7) Service to the community; (8) Rehabilitation (if criminal record exists); and (9) Good moral character.
Negative factors include:
(1) Nature and circumstances of exclusion grounds; (2) Other immigration law violations; (3) Criminal record; and (4) Other evidence of bad characte
INA 240A(b) 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. who:
Special relaxed rules for cancellation of removal apply to battered spouses and children. Only 4,000 persons may be granted cancellation of removal and suspension of in a single fiscal year.
Any expulsion proceedings commenced on or after April 1, 1997 are removal proceedings rather than deportation or exclusion proceedings.
However, 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.
A deportable alien may apply for permanent residence through suspension of deportation if he is able to fulfill the following 3 conditions:
Only 4,000 persons may be granted cancellation of removal and suspension of deportation in a single fiscal year.
A deportable alien who is the parent, spouse, widow or child of a U.S. citizen may be eligible to apply to the Judge to adjust his status to that of a lawful permanent resident. Also qualified to apply for adjustment of status are many aliens whose priority dates for permanent residence are “current”.
Aliens who obtained conditional permanent residence based upon their marriage, or the marriage of their alien parent, to a U.S. citizen may have their legal status terminated by the INS if they fail to meet certain requirements. However, once the Department of Homeland Security places them under deportation proceedings, they may renew their applications for permanent residence before an Immigration Judge.
Mona Shah & Associates has a long history of presenting successful asylum cases all the way from the Asylum Office to the Circuit Courts. We pride ourselves on our skill, knowledge of the culture and country conditions, and most importantly, presentation.
Those 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:
A person will prevail in an asylum claim if they can demonstrate: that they suffered persecution in the past or have a well-founded fear of (future) persecution. Harm or the danger of harm as a result of a personal vendetta, criminal prosecution, civil war, anarchy, or the like does not constitute actionable persecution, though there can be exceptions.
If a person is granted asylum, after one year they may apply for permanent resident status.
The term “persecution” is not defined in the law. However, a common definition, from case law, is “the infliction of suffering or harm upon those who differ in a manner that is regarded as offensive”. Thus the harm need not rise to the level of a long-term detention and torture.
The persecution can be inflicted or threatened by a government or its agents, such as the army or police. However it need not be. It is sufficient if the harm is by persons or groups ”that the government is unable or unwilling to control”.
Most Importantly: The persecution must be on account of at least one of five specific grounds: (1) political opinion, (2) race (3) religion (4) nationality or (5) membership in a particular social group.
In addition, if someone is imputed to possess certain characteristics within these grounds whether or not they actually possess them, and suffer or fear persecution as a result, they can prevail. For instance, someone may or may not hold a particular political opinion, but because their brother is a political activist, the army seeks to harm that person. This is an example of a claim based on imputed political opinion.
A claim can be based on more than one ground; a claim with 2 bases is common.
When to File an Asylum Application:
In addition, a person must file the asylum application within one year of his or her last entry into the U.S. There are two exceptions, however. One is for “changed conditions” in the person’s home country or changes in the U.S. laws. The other is for “extraordinary circumstances”. Examples include a person being too culturally isolated to know of his or her right and obligation to apply for asylum or a person maintaining lawful status (e.g. a student visa) during the year after arrival.
Who is Ineligible for Asylum:
A person may be ineligible for asylum is he or she has persecuted others on behalf of their political opinion, race, religion, etc.; has committed a serious non-political crime before coming to the U.S.; has been convicted of certain crimes in the U.S.; is a danger to the security of the U.S.; or has been “firmly resettled” in a third country (i.e., has received an offer of permanent residence in a third country).
Persons who are ineligible for asylum for any of the above reasons, may be eligible for other forms of relief. One is called ‘withholding of removal”. The other is protection under the Convention Against Torture.
What is a Defensive or Affirmative Asylum Application?
There are two different procedural ways for a person to file for asylum. A “defensive” application is filed by a person who is in deportation or removal proceedings in the U.S. In this case, the Department of Homeland Security is actively seeking to deport or remove the person from the country. An asylum application is filed as a defense to the removal. An adversarial hearing is held before an immigration judge. Evidence and witness lists must be submitted ten days in advance. If the judge denies asylum, an appeal can be made to the Board of Immigration Appeals.
An “affirmative” application is one filed by a person who is not in removal proceedings. It involves the same application form and the same standards apply. A non-adversarial ‘interview’ is held. If the claim is denied, the case is sent to the immigration court and the case proceeds as though it is a “defensive” application.
Proving An Asylum Claim:
The burden to prove that past persecution has occurred or that a well-founded fear of future persecution exists (or both) rests with the applicant. Asylum applicants typically have little or no proof of their identity or what happened to them abroad. Attempts to obtain any evidence whatsoever to demonstrate the truthfulness of the story should be made early. Letters from family members or friends, hospital or birth records, and medical evaluations from the U.S. documenting injuries are examples of important corroboration.
In addition, news articles and human rights reports relevant to the applicant’s claim should be sought and submitted. In addition, experts in the conditions of the applicant’s country, tribal group, etc. should be sought for testimony or an affidavit. If there is a linguistic barrier, a high-quality interpreter should be used.
A Successful Applicant:
A successful asylum applicant can file papers immediately to bring in a spouse and minor children who are abroad and confer his or her asylum status on them. In addition, the successful applicant can receive an employment authorization card and, after a one-year waiting period, apply for a green card. Naturalization can occur some years beyond that.
The percentage of persons who win their asylum cases is significantly higher for those who have legal representation. Often, the real fears in asylum cases are buried below the technicalities of law and procedure, and cultural and language barriers. Working together with our client, we can assist them in telling their stories.
Withholding of Removal
Withholding of Removal prohibits the U.S. government from removing you to a country where your “life or freedom would be threatened on account of your race, religion, nationality, political opinion, or membership in a particular social group.”
You will need to show that you are a refugee, and that there is a clear probability of your persecution by a government (or a group the government cannot control) if you were returned to your country of origin. If you can show that you have been persecuted in the past, it is presumed that you would be persecuted in the future.
However, unlike asylum, your spouse and children will not receive withholding derivatively; it does not automatically allow you to apply for legal permanent resident; and you cannot travel out the U.S. or you will be barred from returning.
Under international and domestic law, a person cannot be returned to a country where he or she will be tortured. You have to show that it is more likely than not that you would be tortured if removed to the country from which you are claiming protection. You must also show that the harm you fear meets the definition of “torture” under the CAT, which is “any act by which severe pain or suffering — physical or mental – is intentionally inflicted on a person for purposes such as punishment, obtaining a confession, intimidation, or discrimination.”
VAWA (Violence Against Women Act). Non-immigrantspouses or children who have been battered by United States citizens may also be eligible for relief from removal under INA §240A(b)(2). The spouse or child of a U.S. citizen or a legal permanent resident, or the parent of a U.S. citizen
Once an illegal alien has been found qualified for legalization or “amnesty” by the INS, the deportation hearing will typically be closed since the alien will have attained the legal right to remain in the United States.
Registry is another means of attaining lawful permanent residence in the United States. 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 aggravated grounds, and who are not ineligible to citizenship.
Finally, if there is no other relief from deportation, most aliens are eligible for, and should apply for, voluntary departure from the United States. This avoids both the stigma and the legal impediments to return to the United States imposed by deportation.
Voluntary departure is available to aliens who are not deportable on aggravated grounds, who have the means to pay for their departure from the U.S., who agree to depart within a period of time granted by the Immigration Judge, and who can establish good moral character during the previous five-year period.