Deportation and Removal Defense
The U.S. immigration law is strict on people striving to receive green cards and remain in the country. Our work at the Orange County Immigration Attorney is to help residents exercise their immigration rights. We can help you explore the various options for canceling the removal, avoiding deportation, and seeking asylum.
If you are categorized as an undocumented individual, it means that you do not have any immigration status in the US. The U.S. immigration officials will require you to attend removal proceedings aimed at helping you avoid deportation. Having an expert immigration lawyer argue these defenses on your behalf can help your case. The most common ways to defend yourself from deportation or removal proceedings are as follows.
The DHS Charged You for the Wrong Reasons
One way of contesting removability charges is by placing blame on the Department of Homeland Security (DHS) for wrongly charging you. Denying DHS’ allegations and contesting any removability charges can help your case. The Immigration Judge (IJ) can close your case if the DHS cannot present documents proving your removability to the court. You still have the chance of submitting relief applications (such as seeking asylum) from removal if the IJ rules against your favor.
Requesting Relief from Removal
Immigration judges must inform individuals who are in removal proceedings about their eligibility to relief from removal. Your attorney should also explain to you the kind of relief you may explore when pursuing your case. Factors such as the length of time you have been living in the US, and the relationship you have with your relatives who legally live in the US will count in this process. Be as transparent as possible when sharing with your attorney any information needed to determine a suitable type of relief.
Common types of relief you may seek following a removal proceeding include asylum, withholding of removal, deferred action, voluntary departure, and adjustment of status. Asylum helps protect people who left their home countries with fear of persecution. Adjustment of status helps you change your nonimmigrant status to an immigrant one. Once you get a withholding of removal, you can live in the country and seek work authorization.
With the voluntary departure, you will be asking the immigration officials to allow you to leave the country without tainting your immigration record. Consider discussing with your immigration attorney ways in which this relief may benefit your case. If you choose a deferred action, you agree with the U.S. government to have your case kept on hold rather than being deported or granted legal status. You can seek this type of relief to avoid being deported if you are an immigrant graduate or student.
Other types of relief you may seek include, prosecutorial discretion, private bills, being protected under the Convention Against Torture, and cancellation based on domestic violence. The IJ may accept your cancellation application if you prove that you are at risk of torture or domestic violence (for women). Prosecutorial discretion allows you to seek work authorization in the US without qualifying for benefits, including the right to travel. The U.S. Congress also passes laws (private bills), allowing immigrants to get relief from removal or deportation.
You Met the Requirement for Good Moral Character
Having "good moral character" can help you request an immigration judge to cancel your deportation or removal. You have to share aspects of your life, showing that you meet this requirement, with your lawyer. All the information presented to the judge by your attorney should help picture you as a good person. Having a criminal record or being labeled as a habitual drunkard may make the IJ consider you as an individual who lacks good moral character.
The U.S. Citizenship and Immigration Services (USCIS) Policy Manual defines good moral character as the character that can measure up to the community-accepted standards of an average citizen. A conviction for various types of crimes may result in the USCIS categorizing you as an individual who lacks good moral character. These crimes include drug offenses, perjury, prostitution, and gambling offenses.
Having instances of misconduct in your record will not necessarily prevent you from accessing immigration benefits. You can show the IJ that you have reformed from committing these offenses. Your immigration attorney can help you demonstrate the approaches you took to reform yourself.
The Deportation or Removal Would Result in Unusual Hardship
Though every deportation or removal instance results in hardship to people’s immediate relatives (qualifying relative), you have to prove that the hardship is extremely unusual and exceptional. The IJ will expect your lawyer to explain this type of hardship. You should show that the deportation would make your relative suffer to a degree exceeding the kind of suffering people suffer when their close relative is being deported.
For example, you may cite the suffering to a situation in which you are severely ill, and your home country lacks adequate medical care for your condition. You can also argue that your dependent relative will lack a support structure and caregiver once you are deported. The IJ may consider these arguments if you back each one of them with supporting pieces of evidence.
What Does “Qualifying Relative” Mean?
The Immigration and Nationality Act makes it mandatory for an undocumented immigrant to have a qualifying relative when summoned to a removal proceeding. A qualifying relative, in this case, can be your spouse, child, or parent with U.S. citizenship or legal admission to the U.S. if you rely on a child as a qualifying relative, the child must be under the age of 21 years and unmarried.
Applying for Non-LPR Cancellation of Removal
A Non-LPR Cancellation of Removal relief applies to foreign-born individuals who have been staying in the country for a long time without legal status. You may seek it as a foreign-born person who has been placed into deportation or removal proceedings. The requirements for this kind of relief are as follows:
- You have not faced a conviction for various law violations or crimes
- You have good moral character
- Your deportation or removal from the country will cause extremely unusual hardship to your relatives who have legal status in the country
- You have been continuously physically present in the country for the past ten years
The IJ has the discretion to deny or approve your cancellation whether or not you meet these basic requirements. Your lawyer will advise you to be sincere and honest for you to be permitted to live in the country and obtain a green card. Presenting pieces of evidence showing that you deserve the cancellation benefits and you meet these requirements can help your case.
Renewing Form I-751 (Removal of Conditional Residence)
The immigration authorities may grant you permanent residency on a two-year conditional basis instead of the 10-year basis that is usually issued to legal permanent residents. Your conditional residency may also be granted if you have been in a marriage less than two years from when you had your permanent residency card approved. Once the authorities grant you residency on a conditional basis, expect your permanent resident card to expire in two years following its approval. You risk facing removal proceedings if you fail to file Form I-751 (Removing Condition on Residency).
Once the authorities approve Form I-175, they will issue you a ten-year card and remove the condition on your permanent residency. You can have this form filed if you are in the middle of a removal proceeding because your conditional residency has expired. The authorities will only accept your application if you and your spouse remain married. If you are divorced, you can file the petition without needing your ex-spouse’s signature once you prove that you entered the marriage in good faith.
You can also base your Form I-175 petition on allegations of you being a victim of domestic violence. In this case, you will be seeking permanent residency when you separated from your spouse. Always involve your immigration lawyer when making a “Removing Condition on Residency” petition.
Applying for U Visa Status and Obtaining Work Authorization in the US
The U.S. immigration law has provisions aimed at protecting victims of serious crimes such as human trafficking and domestic abuse. If you are a victim of these crimes, you can have your immigration status conferred by the U.S. government. You can also obtain a visa provided that you have crucial knowledge regarding a certain crime and are more than willing to help in the criminal investigation.
With a U visa, you can apply for permanent U.S. residency after holding a U nonimmigrant status for at least three years. A U visa petition may come with a waiver for immigration violations, including unlawful entry. Proving you were a victim of a particular crime can help you qualify for a U visa. The immigration authorities will also require you to be helpful in the criminal investigation or thorough prosecution of the crime.
Various crime victims may seek U visa status and work authorization in the country if they are helpful in a criminal investigation. The removal proceedings will be terminated as soon as the immigration authorities approve your U visa. You can also have the removal or deportation proceedings administratively closed with a pending U visa.
Applying for a U.S. Work Permit
Obtaining a U.S. work permit can help you avoid deportation or removal proceedings. The work permit is commonly referred to as an employment authorization document, which allows you to stay in the U.S. on an employment basis. In your application, you must write down your details on a one-page form and attach your documents and photos. Before submitting the form to the USCIS, you must pay a particular processing fee ($140).
While a U.S. work permit may seem like an attractive option for avoiding deportation, you should ensure you are eligible for it. Only a limited group of people (immigrants) can qualify for this permit. You may be eligible if the U.S. immigration authorities granted you a temporary right to be in the country. The permit may also suit you if you are applying for a green card or adjustment of status.
Is a Work Permit the Same as a Work Visa?
A U.S. work permit is not the same as a U.S. work visa since both applications are made in different forms. When applying for a U.S. work permit, you will be asking the U.S. immigration authorities to grant you employment authorization. A work visa, on the other hand, allows you to travel to the U.S. as a foreign citizen seeking temporary work in the country. You must have a valid temporary work offer from an employer in the U.S. to qualify for a work visa.
The USCIS usually considers several factors when determining whether you qualify for a specialty occupation in the U.S. One of the factors include being a holder of a bachelor’s or graduate degree in the job position you are seeking. If you obtained your degree from a U.S.-based school, it would be easier for you to meet this requirement. As a holder of a foreign degree, you must obtain a credential evaluation to determine whether your degree is relevant in the U.S.
Finding a U.S. Employer
One requirement when applying for a U.S. work visa is to have a temporary job offer from a U.S-based employer. If you currently live in the country, you can reach out to potential employers in your field and inquire about an open position. Consider emailing them your resume and asking for open job positions if you are living abroad. Your friends, colleagues, or relatives living in the U.S. can also help you find work in the U.S.
As you conduct a job search, look for employment offers based on your academic qualifications and previous work experience. The USCIS may deny your work visa application if your prospective job does not match your qualifications. Since the U.S. Congress only gives out 65,000 work visas in a fiscal year, you should strive to be among the 65,000 applicants. If the limit is exceeded, the USCIS will reject your petition once you apply and make it impossible for you to get a work visa in that fiscal year.
Getting a Family-Based Green Card Through an I-601A Waiver
A family-based green card can help you when you are facing removal or deportation proceedings, and you have a parent, child, or spouse who is a U.S. citizen. If you are relying on your child who has U.S. citizenship, the child has to be above 21 years of age to help your case. Applying for an I-601A waiver enables you to ask the immigration authorities for a temporary lawful status if you have been unlawfully present in the country.
The first step to getting the family-based green card is to have your U.S. citizen family members file a Form I-130 on your behalf. In this case, you will be asking your U.S. citizen relative to act as a sponsor while seeking a green card (lawful permanent residence). The USCIS will expect your petitioner to submit the I-130 form before denying or approving your petition.
Applying for the I-601A Waiver
The I-601A waiver is legally known as the provisional waiver of unlawful presence. Once the USCIS approves the I-130 petition filed by your U.S. citizen relative, you can seek an I-601A waiver. You must submit the completed Form I-601A to the USCIS in the course of your removal proceedings. Your immigration lawyer can request for more time (continuance) in the removal or deportation case while the USCIS is reviewing this petition.
Will the I-601A Waiver Help Close or Terminate Your Removal Case?
The immigration court handling your removal case may require you to show proof of the USCIS-approved I-601A waiver or I-130 petition. Your immigration lawyer can use these documents to file a motion to terminate or close the removal or deportation proceedings with a local immigration court. Once the proceedings are closed or terminated, you can proceed with the consular processing to be granted legal permanent residence in the U.S.
You must undergo a procedure known as consular processing in your country of origin before returning to the U.S. as a legal permanent resident. The USCIS will send your I-130 petition to the National Visa Center once it is approved and allow you to attend an interview at a U.S. consulate in your country. You may be granted or denied a visa based on how the interview takes place.
Seeking DACA (Deferred Action for Childhood Arrivals) Relief
With a DACA application, you will be seeking administrative relief from removal or deportation. DACA helps eligible immigrants who entered the U.S. when they were children avoid deportation and seek a work permit. Though this program usually expires after two years, you can renew your application. The various requirements for the DACA program are as follows:
- Being under 31 years of age as of 15th June 2012
- You first entered the U.S. prior to your 16th birthday
- Your residence in the U.S. dates back to 15th June 2007
- You maintained your physical presence in the U.S. on 15th June 2012, and the time you are applying for the program
- Your entry to the U.S. was not facilitated with legal documents before 15th June 2012, or your legal status in the country expired as of 15th June 2012
- You are currently a student, high school graduate, GED holder or former member of the military or Coast Guard
- Your background does not include a felony conviction, misdemeanor conviction (for a crime such as DUI), or three or more convictions for any misdemeanor
Can You Apply for DACA for the First Time?
You can apply for DACA from the USCIS website only if you have previously been granted deferred action under the DACA program. If it is your first time applying, you may consider preparing your documents and information so you can apply when the USCIS allows it. Documents, including your school ID, state-issued ID, national ID/consular ID, passport, and birth certificate are crucial in an initial application.
Filing for Temporary Protection Status
The Homeland Security Secretary has the power to designate a particular foreign country for temporary protection status (TPS) on various grounds. For instance, the TPS may be granted if the conditions in the country prevent the citizens from safely returning home. The TPS may also be granted if the country lacks the capacity to handle the return of its citizens adequately. USCIS usually grants TPS to eligible citizens of various countries who are already living in the U.S.
You can seek TPS if you are an eligible individual residing in the designated country. A country may be designated for TPS if it has an environmental disaster and ongoing armed conflict, among other temporary extraordinary conditions. Eligible TPS seekers and TPS beneficiaries are not removable from the U.S. during the designated period. The U.S. immigration authorities can also grant them travel authorization and allow them to seek a work permit during this period.
The DHS (Department of Homeland Security) cannot detain you based on your immigration status in the U.S. once granted TPS. The Temporary Protection Status serves as a temporary immigration benefit, which does not give you any immigration status or lawful permanent residence. The TPS registration does not prevent you from filing for adjustment of status, applying for nonimmigrant status, or seeking other immigration benefits. You must meet the following requirements to seek TPS:
- Be a citizen of a TPS-designated country or an individual without citizenship who previously resided in a TPS-designated country
- File for TPS during the re-registration or the open initial registration period or meet the country-specific requirements for late filing
- Be actively residing in the U.S. since the date specified on your country’s TPS website
- Be continuously and physically present in the U.S. since the date your country gained a TPS designation
Hire a Reputable Immigration Lawyer Near Me
Arguing deportation and removal defenses without the help of an immigration lawyer is a difficult task. Orange County Immigration Attorney has been helping clients with immigration-related cases for many years with successful results. Discuss your case with us by calling 714-909-0426 today.