DEPORTATION DEFENSE

1. Applications for Permanent Residency / Adjustment of Status: While most green card applications are filed before someone is placed in removal proceedings, it can occasionally be used as a defense to deportation. In most cases, the application for permanent residency — or “Adjustment of Status” — must be based on an approved immigrant visa petition. Most often this is based on a family-based petition, but in some circumstances it can also be based on an approved employment-based petition.

2. Renewal of Form I-751 Removal of Conditional Residence: It is not uncommon for a conditional permanent resident to be placed in removal proceedings if he or she fails to timely file the I-751 petition to remove condition on residence if the I-751 is denied. In most circumstances, the I-751 petition can be renewed as a defense to removal before an Immigration Judge. 3. Criminal Waivers: Criminal waivers – such as 212(c), 212(h) and EOIR-42A Cancellation of Removal for Legal Permanent Residents – are available to certain permanent residents who are being charged with deportability due to a criminal past. Occasionally, someone who is not yet a permanent resident can apply for permanent residency in conjunction with the 212(h) waiver to waive a crime that would otherwise cause the application for permanent residency to be denied. 4. Noncriminal Waivers: A noncitizen in Immigration Court proceedings may need to file noncriminal waivers to obtain benefits such as U visas or permanent residency based on a family relationship or employment. Certain “bad acts” such as lying to get an immigration benefit, being “inadmissible” at time of entering the country, or “smuggling” one’s own spouse or child, for example, may need a waiver in order to obtain a given benefit. These waivers most often have to be filed simultaneously with other applications, but are sometimes required in order to prevent deportation. 5. Asylum, Withholding of Removal and Relief under the Convention Against Torture: Those present in the United States who have suffered harm, or fear that they will suffer harm upon return to their home country, may be eligible for asylum, withholding of removal or relief under the Convention Against Torture. Applicants must show that the harm they suffered or fear they will suffer rises to the level of “persecution” and that harm is based on race, religion, nationality, membership in a particular social group, or (actual or imputed) political opinion. 6. Prosecutorial Discretion: In some circumstances, the government attorney may exercise his or her discretion and close or terminate removal proceedings against an individual. The best practice is to request Prosecutorial Discretion in writing with evidence to the Department of Homeland Security. In some cases, a person will be eligible for work authorization even after a case is closed, but this depends on other applications on file. 7. Motions for Administrative Closure based on I-601A Eligibility: Some individuals who are married to U.S. citizens or have U.S. citizen parents may be eligible to ask the Immigration Judge to close proceedings while they file an I-601A waiver. If the I-601A waiver is approved, the person will be required to recalendar his or her Immigration Court case, request his or her immigration court case to be terminated. Then the person will need to return to his or her home country to apply for an immigrant visa and return to the U.S. as a permanent resident. 8. U visas: Certain victims of crimes who are helpful in an investigation of the crime may apply for U visa status and obtain work authorization in the United States. If the U visa is approved, removal proceedings can be terminated. In some circumstances, removal proceedings can be administratively closed while the U visa is pending. 9. DACA: Certain individuals who were brought to the U.S. as children, attended school in the U.S. and have not been outside of the U.S. for too long can apply for DACA, or Deferred Action for Certain Childhood Arrivals. Once DACA is approved, or in some circumstance even while the application is pending, removal proceedings can be administratively closed. Note: Before filing any DACA-related applications, any applicant should consult with an immigration lawyer to determine how and if Trump’s election will effect the application. 10. TPS and NACARA: The U.S. government designates certain countries for Temporary Protected Status or “TPS” if conditions in that country temporarily make a person’s return unsafe, or if its government is unable to sufficiently handle the return of its nationals. Similarly, individuals from certain countries — primarily Central America and Eastern Europe — who entered the U.S. before certain dates and applied for asylum or registered for certain benefits may be eligible for NACARA. Both TPS and NACARA can serve as a defense to deportation. 11. VAWA and VAWA Cancellation of Removal: Victims of certain crimes involving domestic violence may be eligible for relief under the Violence Against Women Act. These applications can serve as a defense to deportation. 12. EOIR-42B, Non-Legal Permanent Resident Cancellation of Removal: In some cases, an applicant can have his or her deportation proceeding canceled and obtain lawful permanent resident status if he or she can establish (1) Physically present in the U.S. for at least 10 years before Immigration Court proceedings began; (2) Good moral character for 10 years; and (3) That a U.S. citizen or legal permanent resident child, spouse, or parent will suffer extreme and exceptionally unusual hardship if the individual is not allowed to remain in the U.S. Those who file EOIR-42B Cancellation of Removal are eligible for a work permit while the application is pending. 13. Motions to Terminate: If the charges on the government’s Notice to Appear are not correct, an applicant may be able to file a Motion to Terminate asking the Immigration Court to terminate proceedings. 14. Motions to Suppress: If an individual was detained by law enforcement or immigration in violation of constitutional due process, it might be possible to request the Immigration Court to suppress the evidence and to terminate Immigration Court proceedings. 15. Voluntary Departure: If no other deportation defense options are available, or in the event a person is eligible to return to his or her home country and obtain a visa to return to the U.S., he or she may want to request voluntary departure in lieu of being ordered removed / deported. Voluntary Departure is not available to everyone in removal proceedings, but may be the best option.

Detention Center

If you or a loved one has been detained in a detention center anywhere in U.S., contact a local attorney as soon as possible to discuss your options. Getting released from a detention center is not always an option, but for some, it is a very real possibility.

Conditions of Release

There is also the possibility that the alien may be released subject to one or more conditions. Typical conditions of release include:

• Alien must remain in the custody of a designated person. This person must agree to the supervision of the alien;
• Alien must maintain employment. If the alien is not employed, he must actively seek employment;
• Alien must maintain or begin an education program;
• Alien must follow specific restrictions regarding personal associations, residence, or travel;
• Alien must avoid any and all contact with an alleged victim of the crime and with any potential witness(es) who may provide testimony related to the offense;
• Alien must consistently report to designated law enforcement, pretrial services, or any other designated agency;
• Alien must follow an implemented curfew;
• Alien must refrain from possessing a firearm or other dangerous weapon;
• Alien must refrain from the excessive use of alcohol and/or narcotics;
• Alien may be required to undergo medical, psychological, or other treatment program;
• Alien must execute an agreement agreeing to forfeit release if he fails to appear for his court date;
• Alien must execute a bail bond with solvent sureties;
• Alien may be required to return to custody after periods of authorized employment, schooling, or other limited purposes; and
• Alien must satisfy any other conditions related to the safety of others involved.

Detention Hearing

At this point, a detention hearing will sometimes be held for the immigration judge to determine if there are any further conditions that should be put in place in order to ensure safety of the community as well as gain any further assurance needed regarding the alien’s future appearance in court. The immigration judge makes her determination based on a variety of possible factors:

• The weight of the evidence against the alien;
• The nature and condition of the violation at issue; and
• The history and characteristics of the person.

When looking at the background of the person involved, the immigration judge will consider a multitude of attributes. These include the person’s employment, mental health, community ties, family relationships, and any previous alcohol or drug abuse. It is likely that the officer will also look into the circumstances surrounding the offense. For example, whether the alien was on probation or other type of release at the time.

Immigration Courts

There are different reasons why you or a loved one may find yourself in front of a judge in Immigration Court (also called the Executive Office for Immigration Review).  But whatever the reason, it is important to have an experienced immigration attorney to help you through the process.

Immigration Proceedings

Generally, there are three basic stages related to immigration court and its proceedings.

1. Master Calendar Hearings;
2. Individual Hearings; and
3. Post-Hearing Proceedings.

Each stage has a different focus, but all three are essential for an organized and fair justice system. In order to begin the process, you will be served with a Notice to Appear (NTA). An NTA is a type of charging document that is deemed to be a formal allegation that the alien is presently in or has entered into the U.S. unlawfully.

This document is important and necessary to alert an immigrant to the fact that he is scheduled for removal proceedings with the immigration court. It also will specifically state the reasons as to why U.S. immigration authorities believe that the individual is in the country illegally. After receiving the NTA, the immigrant will receive a secondary notice from the immigration court, normally between one week and one month after the NTA has been served. The second notice is called a “hearing notice,” and it will advise the immigrant of the date and time of the initial master calendar hearing. If the alien is being detained by immigration authorities, the immigration court will schedule the alien’s first hearing much more quickly. It is important that the individual takes note of the relevant dates and time frames associated with his legal matters. If an individual makes a mistake, or otherwise fails to submit documentation by the required time, he will most likely forfeit any potential relief and will likely receive a final order of deportation.

Master Calendar Hearings

The initial hearing, also referred to as the Master Calendar Hearing, is the time at which you may address any introductory issues in your case. This may include something as fundamental as requesting a change in venue. While simple issues are discussed at the initial hearing, more serious concerns about the allegations can be discussed and challenged at that time as well.

This initial master calendar hearing is generally quite short. Within the short time allotted, the immigration judge will hear and generally rule on all issues raised at this hearing. In the judge’s discretion, a continuance may be granted if one or more issues are unable to be resolved at the first court hearing. Due to the high volume of immigration cases, a continuance may result in the next court date being scheduled months later.

Individual Hearing

If no continuance is needed, the judge will likely find that your case may be advanced to the next stage of the process. The individual hearing is the time for the court to consider your specific claim for relief (such as Cancellation of Removal, Adjustment of Status, or Asylum). The Individual Hearing is similar to the final trial that is scheduled in criminal and civil cases.

After considering the facts of your case, and the law that applies, the immigration judge will decide whether to grant your application for relief from deportation, and whether you will be allowed to remain in the U.S.  Again, because of the high number of immigration cases, your individual hearing may be scheduled many months from the time of your master calendar hearing. While master calendar hearings are generally concluded within 30 minutes, individual hearings usually last several hours.  During this time, the court will hear all relevant testimony from both the immigrant.  The immigrant’s lawyer, and the government lawyer (often referred to as the ICE “trial attorney”), will conduct examinations of the immigrant and other witnesses.  The court will also allow both sides to give final arguments, a very important part of the case. At the end of the individual hearing, the judge will render his decision.  If the judge finds in favor of the immigrant, he will be able to remain in the United States, often times as a permanent resident with a green card.  However, whether the person in removal proceedings wins or loses, there is always a possibility that there could be an appeal of the case to the Board of Immigration Appeals (BIA), and even on to a U.S. Circuit Court of Appeals.

Post-Hearing Procedures

Depending on the outcome of the case, either the government or the immigrant may challenge the judge’s decision in the following ways:

• Appeal:  Either the immigrant or the government can file an appeal with the Board of Immigration Appeals (BIA). This appeal must be filed within 30 days of the judge’s decision. If the BIA agrees to review the matter, it will most likely render a decision within 180 days.
• Motion to Reopen: This type of motion is made when a party seeks to present new facts that were not available at the time of the hearing. This motion must be filed with the court within 90 days of the judge’s decision.
• Motion to Reconsider: This type of motion is made when a party believes that the court has rendered an incorrect decision based on a misinterpretation of the law. This type of motion must be filed within 30 days of the court’s decision.

The Board of Immigration Appeals (BIA) is tasked with the assignment of issuing appellate administrative decisions. The BIA is the highest administrative body regarding the interpretation and application of immigration laws. The BIA is made up of 15 members and is located in Falls Church, Virginia. The BIA procedure does not involve courtroom proceedings. Instead, it listens to and decides appeals by administering a “paper review” of the cases. While it is uncommon, there are certain occasions when the BIA will choose to hear oral arguments related to an appealed case.

In certain circumstances, the final agency decision of the BIA can be further litigated in a U.S circuit court of appeals. Federal courts are courts of limited jurisdiction, and can only hear certain claims related to an immigration matter. Immigration-related federal court litigation is drastically different from litigation in the immigration courts, proceedings before the USCIS, or practice before the Board of Immigration Appeals. We have successfully argued cases before the U.S. Court of Appeals for the Tenth Circuit.

In addition to challenging the final agency decision of the BIA, federal courts can be used to challenge:

1. the USCIS’ unreasonable delay in adjudicating an application or petition
2. the USCIS’ denial of an application for naturalization
3. the unlawful detention of someone in immigration custody
4. a removal order on legal or constitutional grounds.

If you have filed a benefits application, such as an adjustment of status (green card) or a naturalization application, and if you have already been interviewed, but have been waiting an unreasonably long time for a decision, you can begin litigation in federal court against the USCIS by filing a mandamus to compel a prompt adjudication. You are entitled to have your benefits application adjudicated and the USCIS is required to adjudicate applications in a reasonable time. Litigation in federal court can lead to a resolution in matter of weeks or months. A mandamus suit is started in the federal district court in the district in which you reside.