Removal Defense

Removal proceedings, often referred to as deportation proceedings, are legal proceedings initiated by the U.S. Department of Homeland Security (DHS) to determine whether a foreign national should be removed (deported) from the country.

These proceedings take place in Immigration Court and follow a structured process. The first step involves the issuance of a Notice to Appear (NTA), which outlines the alleged facts that form the basis for the foreign national’s removal and outlines the immigration charges against the individual. The foreign national is then scheduled for a hearing before an Immigration Judge.

DHS begins removal proceedings against foreign nationals for various reasons, including but not limited to:

• Foreign Nationals who are trying to enter the United States but are not entitled to do so because they do not have a visa, they have fraudulent travel documents, or for other reasons. This also includes temporary visa holders who entered the United States legally, but whose lawful status has expired.
• Foreign Nationals who entered the United States without going through immigration inspection, usually by crossing into the United States without a visa across the Canadian or Mexican border.
• Foreign Nationals who apply for immigration benefits – such as Lawful Permanent Residency, asylum, or naturalization – and their applications are denied by the immigration agency, U.S. Citizenship & Immigration Services (USCIS).
• Lawful Permanent Residents who have violated the immigration laws by committing crimes in the United States or by remaining outside of the United States for extended periods.

A foreign national may choose to hire an attorney to represent them before an Immigration Judge or proceed without one. At the Immigration Court hearings, both the government DHS attorney and the foreign national or their attorney present their respective cases. The foreign national can contest the charges, present evidence in their favor, testify on their behalf, and provide legal arguments to establish their eligibility for an immigration benefit that will allow them to remain in the United States. The Immigration Judge will then make a determination based on the evidence and arguments presented. If the Immigration Judge denies the foreign national’s application(s) for relief and orders removal, the foreign national may appeal the decision to the Board of Immigration Appeals (BIA) and, in some cases, to the federal courts.

Below are the common types of immigration relief available to individuals facing removal from the United States:

Asylum/Withholding of Removal/Protection under the Convention Against Torture (CAT)

This is a form of protection granted to individuals who can demonstrate a credible fear of persecution in their home country based on their race, religion, nationality, political opinion, or membership in a particular social group. To be eligible, individuals must file their asylum application within one year of their arrival in the United States, although there are exceptions to this rule. Asylum can be a powerful defense against removal and may lead to a grant of asylum status, which allows the individual to remain in the United States and to eventually apply for Lawful Permanent Residency (“LPR” or “green card”). If the Immigration Judge denies asylum, individuals may still seek relief through Withholding of Removal and/or protection under the Convention Against Torture (CAT). Withholding of removal is a form of relief that prevents an individual from being removed to a country where they would face persecution based on their race, religion, nationality, political opinion, or membership in a particular social group. CAT protection, on the other hand, applies when there is a likelihood that the individual would be subjected to torture if returned to their home country. Both forms of relief have a high burden of proof and may provide a temporary form of protection from deportation.

Cancellation of Removal

There are two types of cancellation of removal – one for Lawful Permanent Residents (“LPRs”) and one for foreign national. LPRs who have been lawful residents for at least five years and have lived in the United States continuously for seven years may be eligible for cancellation of removal. Foreign Nationals who have been physically present in the United States for at least ten years, can demonstrate “good moral character,” have not been convicted of certain criminal offenses, and can establish that removal would result in “exceptional and extremely unusual hardship” to their U.S. citizen or LPR immediate family members may also qualify for this relief.

VAWA Cancellation

Victims of domestic violence or abuse by a U.S. citizen or LPR spouse or parent may be eligible for VAWA (Violence Against Women Act) Cancellation of Removal. This form of relief is available to qualifying individuals who can prove the abuse and meet other eligibility requirements.

Adjustment of Status

Adjustment of Status allows certain individuals to change their immigration status to that of a Lawful Permanent Resident while in the United States. Eligibility depends on various factors, including family or employment sponsorship, immediate relative status, and visa availability.

Voluntary Departure

Voluntary Departure is a form of relief that allows individuals to leave the United States voluntarily without a removal order. While it does not provide the foreign national with a lawful status to remain in the United States, it can be used to avoid the negative consequences of a removal/deportation order. It is typically granted by an Immigration Judge under specific conditions.

The specific relief available to a foreign national depends on their immigration status and a variety of other factors, including their nationality, the dates and manners of their entry into the United States, their criminal history, their length of time in the United States, their family status, and whether they meet additional eligibility criteria established by immigration law and policy.

It is crucial for individuals in removal proceedings to consult with experienced immigration attorneys who can help them navigate the complex legal process and explore their options for relief. For a consultation on a case involving removal proceedings, please contact Kolko & Casey, P.C. Most removal cases handled by Kolko & Casey, P.C. are charged on an hourly basis for the professional services provided.