Deportation and Removal Defense in immigration court proceedings.
Deportation and Removal Defense in immigration court proceedings
Removal is the word United States immigration laws use for what is more commonly known as "deportation."
Deportation, also referred to as "removal" in legal terms, occurs when the federal government orders that a non-citizen be removed from the United States. This can occur for different reasons, but typically occurs after a violation of immigration or criminal laws. When immigration laws are broken, or when certain criminal charges are brought against an immigrant, the immigrant faces deportation, or removal. U.S. citizens are generally protected from deportation, although if a naturalized U.S. citizen is found guilty of establishing citizenship through fraudulent means, he or she can be deported and will not be allowed back in the U.S. at any time in the future.
Even minor offense which would have little punishment for a U.S. citizen can have devastating impact on an immigrant, especially an immigrant who does not have permanent resident status. Certain heinous crimes though, like rape and murder, will result in removal (or deportation) of an immigrant who does have permanent resident status. The most common crimes that lead to removal are drug-related offenses. Any immigrant caught selling drugs will likely be removed. Using or selling drugs such as cocaine or marijuana can result in removal.
However, even if persons are removable, they may be able to remain in the United States if an immigration judge "cancels" their departure. This form of relief is called "cancellation of removal" and gives otherwise removable persons lawful permanent resident status.
Generally, to qualify for cancellation of removal, a person must be eligible to file a waiver for the ground on which the government is seeking to remove him or her from the United States. A person must be in removal proceedings to apply for cancellation of removal. Removal proceedings begin when Immigration and Customs Enforcement (ICE) issues a Notice to Appear ("NTA") to the person the government seeks to remove from the Unites States. The NTA states the removability ground(s) the government will rely on in the removal proceedings to try to prove the person should be removed from the United States.
Persons not in removal proceedings that want to apply for cancellation of removal may ask ICE to serve them with a Notice to Appear. They can then transfer their cases to immigration court and file the application for cancellation of removal. Persons not in removal proceedings should consult with an immigration attorney before asking ICE that they be put in removal proceedings. Applying for cancellation of removal is VERY RISKY.
There are four types of cancellation of removal:
- Cancellation of removal for lawful permanent residents.
- Cancellation of removal for nonpermanent residents.
- Cancellation of removal under the Violence Against Women Act (VAWA) for battered immigrant family members.
- Cancellation of removal for NACARA beneficiaries.
Cancellation of Removal for Lawful Permanent Residents
Cancellation of removal for lawful permanent residents gives lawful permanent residents that have committed certain crimes a second chance to stay in the United States.
- If you are a lawful permanent resident must, to qualify for cancellation of removal, you must.
- Have been lawfully admitted for permanent residence for not less than five years.
- Have resided in the United States continuously for seven years after having been admitted in any status.
- Not have been convicted of any aggravated felony.
Fulfilling the list of above requirements only makes a person eligible to apply for cancellation of removal. Meeting the eligibility requirements does not mean that you will be allowed to stay in the United States.
Cancellation of removal is always discretionary. This means that the Immigration Judge must decide that you deserve cancellation of removal after finding that you meet the eligibility requirements.
Cancellation of Removal for Nonpermanent Residents
A nonpermanent resident who wins cancellation of removal will have his or her status adjusted to permanent residency.
If you are a nonpermanent resident, to qualify for cancellation of removal, you must show:
- Ten years of continuo