Immigration and Removal Defense

 

 

Removal Defense

Being deported/removed from the United States is a life-changing event that rips people away from their homes, businesses, and families. Fortunately, for many noncitizens, being placed into immigration court – what is legally known as removal proceedings – does not mean automatic deportation.  To the contrary, there are many types of removal defense strategies available in these types of cases.

Because of the many forms of relief from removal and the complicated requirements and procedures for each, having an experienced immigration attorney is critical to ensure a successful outcome in an immigration court case.  Often, a successful defense means that a person is allowed to remain in the United States or obtain lawful permanent resident or other status as part of their immigration case.  The Meyer Law Office, PC specializes in and aggressively litigates removal defense cases.  Not only are we experts in pursuing the traditional grounds of relief from removal, such as Cancellation of Removal, Adjustment of Status, Asylum/Withholding/CAT, and other forms of relief, but our firm also affirmatively litigates complex issues in removal defense cases, including Motions to Terminate, Motions to Suppress, and other litigation strategies on behalf of clients.

Who has the right to an attorney in their removal case?

Everyone has the right for an attorney to represent them in their removal proceedings. However, unlike in a criminal defense case, the government will not provide free immigration attorneys to those who do not have one. Those who are in, or might soon be in, removal proceedings should hire an experienced immigration attorney or find an organization that will provide free or low-cost immigration services.

Back to the top of the page

 

Cancellation of Removal/Deportation

 

What is cancellation of removal?

An application for cancellation of removal is an application to terminate removal proceeding and either maintain immigration status or obtain immigration status.  For a lawful permanent resident, success in an application for cancellation of removal means they will be released from custody and allowed to remain in the U.S. with their lawful permanent resident status.  For a person who is not a lawful permanent resident, success in cancellation means that the person will be released from custody and also granted lawful permanent resident status by the immigration court.

What are the requirements for cancellation of removal?

The requirements to apply for cancellation of removal are different depending on the applicant’s immigration status. To be eligible for cancellation of removal, a person who is not a lawful permanent resident must demonstrate:

  • 10 years of continuous physical presence in the U.S.;
  • Good moral character during that period of time;
  • No disqualifying criminal offenses; and
  • Exceptional and extremely unusual hardship to a U.S. citizen or lawful permanent resident spouse, parent, or child.

If the individual is an LPR and is placed into removal proceedings, the requirements are different. That individual must show:

  • 7 years of continuous residence after admission in any status;
  • 5 years as a lawful permanent resident;
  • No aggravated felony convictions
  • Merits a grant of cancellation of removal in the exercise of discretion.

Back to the top of the page

Prosecutorial Discretion Requests

 

What is prosecutorial discretion?

Prosecutorial discretion is the authority that an agency or officer has to decide which cases to pursue and how to pursue them. Examples of favorable prosecutorial discretion in the immigration context include a grant of deferred action, a decision to terminate or administratively close removal proceedings, a stay of removal, or a decision not to issue a charging document for removal proceedings in the first place. Some prosecutorial discretion decisions apply agency wide, such as Deferred Action for Childhood Arrivals, while other decisions are made by individual officers on a case-by-case basis. Having an attorney who knows which type of discretion to request and what kind of arguments will persuade an immigration official to exercise their prosecutorial discretion can make all the difference for someone who is at risk of removal.

Appeals to the Board of Immigration Appeals

If an immigration judge issues a decision that is unfavorable to a client, whether it be ordering removal or denying an application for some form of immigration relief, the person can appeal that decision to the Board of Immigration Appeals. This specialized appeals process is different than that of most state and federal courts and requires an attorney who is familiar with the process and the case law particular to that appeal process.  The Meyer Law Office, PC represents both detained and non-detained clients in all types of appeal before the Board of Immigration Appeals.

Back to the top of the page

Immigration Bond Hearings

 

What is an immigration bond?

When a person is in immigration removal proceedings, ICE often keeps that person in immigration detention. An immigration judge may or may not decide to issue a bond in that case. Immigration judges are not required to grant a bond in all cases, so many people are denied bond and remain in detention during the pendency of their removal cases. When an immigration bond is issued, it may be much higher than a bond in criminal court, and can be difficult to pay. Some people are subject to what is called “mandatory detention,” which means that the immigration judge cannot set any bond.

How can an attorney help with an immigration bond?

When an individual arrives in immigration detention, he is notified of whether he received a bond, and if so, the amount of the bond. If the bond is too high, or if he is denied a bond in the exercise of discretion, the person may request a bond redetermination hearing. In situations where the government is arguing that a person is subject to mandatory immigration detention due a criminal conviction, that person can argue for a legal redetermination of bond eligibility before the immigration court, and under certain circumstances, before the federal district court.  The Meyer Law Office, PC represents people seeking bond redeterminations before the immigration court as well as in federal court.

Back to the top of the page

 

Federal Court Cases and Appeals

The Meyer Law Office, PC is one of only a few law firms in the Denver area capable of representing immigration cases in federal court.  We are admitted to practice in both the Federal District Court and the Tenth Circuit Court of Appeals.  In immigration cases where a person has exhausted their administrative appeals, seeking review of a case in the federal courts can be a powerful tool to protect and advance a person’s constitutional and statutory rights.  The Meyer Law Office, PC has successfully challenged unlawful immigration detention in Federal District Court through writs of habeas corpus.  As well, the firm handles federal court review of removal orders and other issues such as the proper legal analysis of criminal convictions for immigration purposes.

Back to the top of the page

 

Family-Based Immigration and Lawful Permanent Residency

 

Who Can Legalize Whom?

U.S. citizens can file I-130 Petitions for spouses, children, parents, and siblings. U.S. citizens can also file I-129F Petitions for fiance(e)s. To petition for a parent, a U.S. citizen must be at least 21 years old. Lawful permanent residents can file I-130 Petitions for spouses and unmarried children. Special rules apply to adopted children and step-children.

How Long Is The Wait?

There are quotas on the number of immigrant visas (“green cards”) that are issued each year in certain family-based categories. Because there are insufficient green cards available for everyone who applies, there is a waiting list for certain family-based categories. The first step to be placed on the waiting list is to file an I-130 Petition for Alien Relative. Once the priority date becomes current, the applicant can take the next step toward getting his/her green card.

Immediate Relatives

There are no quotas for the following relatives: spouses of U.S. citizens, parents of U.S. citizens, and children under 21 years old of U.S. citizens.

Family-Based Preference Categories

For all other relatives, there are quotas. There are four family-based preference categories:

    • 1st preference: unmarried sons and daughters (21 and older) of U.S. citizens
    • 2A preference: spouses and unmarried children (under 21) of lawful permanent residents
    • 2B preference: unmarried sons and daughters (21 and older) of lawful permanent residents
    • 3rd preference: married sons and daughters (21 and older) of U.S. citizens
    • 4th preference: brothers and sisters of U.S. citizens

Relatives who fall within these preference-based categories must wait for their priority date to become current before they can apply for their green cards. Each month, the U.S. Department of State publishes the visa bulletin, which shows the priority dates that are current in each category for that month. The priority date is generally the date that the I-130 Petition was filed.

Cautionary Warnings

The forms for legalization appear to be somewhat simple but there are several traps that can create problems for people who are trying to adjust their status.

  1. Marriage: Because there is no category for married children/sons/daughters of lawful permanent residents, it is imperative that children/sons/daughters of lawful permanent residents who are awaiting their priority not to get married, as any pending I-130 Petition would be automatically revoked.
  2.  

  3. Age-Out: If a child turns 21 before obtaining his/her green card, that child might no longer be eligible for the green card. The Child Status Protection Act (CSPA) was enacted to help prevent aging-out of certain children. However, it does not apply in all cases. Call our office to set up a consultation to determine if CSPA applies in your case.
  4.  

  5. Reinstatement: If a person has been deported (i.e. removed) from the United States before, the old removal order can be “reinstated,” meaning that the person can be arrested by ICE and removed without a hearing before an Immigration Judge. Often, people do not know whether they have been removed. There is a procedure called “expedited removal” on the border, which carries distinct legal consequences from a “voluntary return.” When a person gets caught crossing the border, the immigration officials often do not explain what is happening. Our law firm has special screening procedures to ensure that our clients do not affirmatively present themselves to an immigration office when they have prior orders of removal.
  6.  

  7. Unexecuted Order of Deportation/Removal: If a person has an unexecuted order of deportation/removal, it is also very dangerous to present him/herself at an immigration office. We have found that often people do not know they have been ordered deported/removed in absentia by an Immigration Court at some point in the past.  Similar to reinstatement of removal, a person with an unexecuted order of deportation/removal can be arrested and removed without a hearing before an Immigration Judge.
  8.  

  9. Crimes: Certain arrests and criminal convictions can affect a person’s eligibility to legalize. Our law firm specializes in analyzing the immigration consequences of criminal arrests and convictions in order to help people navigate and obtain their green cards.
  10.  

  11. Unlawful Presence and the Permanent Bar: Persons who do not have permission to be in the United States may be accruing “unlawful presence.” Under INA Section 212(a)(9)(C), if a person accrues more than one year of unlawful presence, then leaves the United States, and returns illegally to the United States, that person may be subject to the “permanent bar.” This means that the person cannot legalize his/her status until that person has spent 10 years outside of the country. Many people are subject to the permanent bar but do not realize it.
Adjustment of Status vs. Consular Processing

Once a person’s priority date is current, that person can take the next step toward obtaining his/her green card. This will either be adjustment of status or consular processing. Adjustment of status is when a person applies for his/her green card from within the United States with USCIS.  Typically, persons who were lawfully inspected and admitted to the United States, and people protected under a provision of law known as INA §245(i), are eligible to adjust status in the United States.

Many people do not have the option of applying for their green cards from within the United States. If a person does not have a lawful admission or protection under INA §245, they may be required to consular process in their home country.  Our law firm regularly prepares applications for adjustment of status and consular processing. More information, as well as forms and filing fees, can be found on the USCIS website.

Back to the top of the page

 

Deferred Action for Childhood Arrivals (DACA)

On June 15, 2012, the Obama Administration announced a significant policy change that benefits certain young people who were brought to the U.S. at a young age and who meet certain criteria.   Individuals who qualify may apply for and receive “deferred action” for a period of two years, receive work authorization, and remain in the United States without risk of removal.

What is Deferred Action?

Deferred Action is decision by the government not to seek to deport the individual from the United States for a certain period of time. Deferred Action is not legal status, but it does allow an individual to remain in the U.S. and obtain work authorization, a social security number, and a driver’s license.

Who is Eligible for Deferred Action?

You may be eligible for Deferred Action if:

    • You entered the U.S. before the age of 16;
    • You have lived in the U.S. continuously for 5 years prior to June 15, 2012;
    • You are at least 15 years old but not yet 31 on June 15, 2012;
    • You were physically present in the U.S. on June 15, 2012;
    • You have graduated from high school, are currently enrolled in school, have obtained or are currently enrolled in a recognized GED program, or have been honorably discharged from the U.S. military; and
    • You do not have a conviction for a felony, a “significant misdemeanor,” three misdemeanors or otherwise pose a threat to national security or public safety.

Back to the top of the page

 

Consular Processing and Waivers

If a person applying for their green card does not have a prior lawful admission to the U.S. or protection under INA §245, they may be required to consular process in their home country.  An individual who is the beneficiary of an approved immigrant petition and has a visa number immediately available may apply at a U.S. Consulate abroad in order to become a lawful permanent resident.  Generally, consular processing is necessary for one of three reasons:

    • the applicant is outside the United States;
    • the applicant is ineligible to adjust status inside the United States; or
    • for strategic or convenience reasons.
Who Is Eligible for Consular Processing of an Immigrant Visa?

In order to be eligible for a family-based immigrant visa, the applicant must be a) the beneficiary of an approved visa petition whose priority date is current; or b) a derivative family member (spouses and unmarried children of preference immigrants if they are accompanying or following-to-join the beneficiary).

What Is the Application Process for Consular Processing?

Once a Petition for Alien Relative (Form I-130) is approved, USCIS forwards the approved immigrant petition to the National Visa Center (NVC), which is part of the State Department.  When the priority date becomes current, the NVC will advise the person that an immigrant visa is available and send forms to the applicant, which must then be returned to the NVC with the appropriate fees.  Once payment has been received, the applicant must complete an additional application along with supporting documents necessary for the consular appointment.

The NVC will then forward the petition and supporting documentation to the consulate.  The applicant has the burden to prove admissibility to the U.S. by showing that he or she has not accrued unlawful presence and is not inadmissible under health, criminal, or other grounds of inadmissibility.

Many times an applicant will trigger certain grounds of inadmissibility, for which there is often a basis to apply for a “waiver.” The waiver application process is an additional step which requires significant preparation, often to demonstrate “extreme hardship” to a qualifying family member.  This waiver process can be time intensive and complicate the consular processing, as such waiver applications must also be adjudicated by the government.

When an immigrant visa and any waivers are granted, and the visa holder then seeks to enter the United States, and barring any problems, the applicant’s passport will be stamped to indicate that he or she is now a lawful permanent resident.

What Is the Time Frame for Consular Processing?

Generally speaking, from the date the immigrant visa becomes available, an average of six to twelve months processing time is expected, depending on the particular facts of the case and whether a waiver of grounds of inadmissibility is necessary.

What Is the New Provisional Waiver Process?

In March of 2013, USCIS began implementing a new “provisional waiver” process in consular processing cases.  This procedural change in the waiver application process is related to the unlawful presence bars that allows the government to make an initial decision on the waiver.  The goal is to reduce the adjudication time for persons who are consular processing and avoid lengthy separation of family members.  This new process does not change the actual substantive requirements of consular processing, and only certain persons are eligible for the provisional waiver.

Back to the top of the page

 

Naturalization (Citizenship)

 

What Are The Benefits of U.S. Citizenship?

There are several benefits of U.S. citizenship, including: voting, bringing family members to the U.S., traveling with a U.S. passport, protection from abandonment of permanent resident status, and protection from deportation or removal.

Who Is Eligible For Naturalization?

The general rule is that a person must have their lawful permanent resident status for 5 years to become eligible for naturalization. Persons who are married to U.S. citizens only have to wait 3 years. An applicant for U.S. citizenship must be a person of good moral character, and must pass a naturalization exam. In addition, there are physical presence and continuous residence requirements that must be met.

Child Citizenship Act of 2000

Some children automatically become citizens when their parents naturalize. The basic requirements for a child to automatically become a citizen are:

    • the child has at least one U.S. citizen parent (by birth or naturalization);
    • the child is under 18 years old;
    • the child is currently residing permanently in the U.S. in the legal and physical custody of the U.S. citizen parent; and
    • the child is a lawful permanent resident.

Back to the top of the page

 

Asylum and Other Persecution-Based Relief

Immigration law provides the protection of asylum to those individuals who have suffered past persecution or have a well-founded fear of future persecution in their native countries on account of their race, religion, nationality, political opinions or membership in a particular social group.

Asylum

Asylum is a complicated immigration process.  Persecution encompasses a broad range of acts including human rights violations; detention coupled with physical harm or torture, rape, severe economic deprivation which amounts to total inability to provide a livelihood; threats to one’s life or freedom; and cumulative forms of discrimination or harassment rising to the level of persecution. In an asylum case, the persecution must be at the hands of the government or a group or individual that the government is unable or unwilling to control.

If a person has been persecuted in the past on account of one of the enumerated grounds, there is a presumption that the person has a well-founded fear of future persecution. The burden then shifts to the government to show that there has been a fundamental change in circumstances such that the applicant’s fear is no longer reasonable, or that the applicant could reasonably relocate to another part of the applicant’s native country. If a person has not suffered past persecution, he or she may still be eligible for asylum based on a well-founded fear of future persecution on account of one of the five grounds above. The person must have a subjective fear, and this fear must be substantiated by objective evidence.

A person should be granted asylum if he or she can show a reasonable possibility of persecution. In addition to showing eligibility for asylum, the individual must demonstrate that he or she merits a favorable exercise of discretion. In addition, there are certain mandatory grounds which bar a person from being eligible for asylum, including conviction of an “aggravated felony,” a failure to file within one year of entry, and other grounds.

Withholding of Removal
This is another form of persecution-based relief from removal, in which an applicant must prove that his or her life or freedom would be threatened on account of race, religion, nationality, political opinion or membership in a particular social group. There are several key differences between asylum and withholding of removal. First, withholding of removal is nondiscretionary and must be granted if a person establishes eligibility. Second, the standard for obtaining withholding is more stringent than asylum, in that a person must establish that it is “more likely than not” they will face persecution. Third, the bars to withholding are narrower than the bars to asylum. A person granted withholding of removal is not granted protection from removal to a third country. Furthermore, a grant of withholding of removal does not result in permanent resident status, but does allow for work authorization.

   

The Convention Against Torture
The Convention Against Torture prohibits the removal of anyone to a country in which it is more likely than not the individual would suffer torture at the hands of the government or at the hands of third parties with government acquiescence. There is no requirement that this torture be on account of any particular ground. Torture for any reason provides protection.  There are no bars to deferral of removal under the Torture Convention including no bars for firm resettlement in a third country, persecution of others or criminal convictions.  This is a limited form of relief and does not provide protection from removal to a third country where the individual would not be tortured.  A person granted deferral of removal is not automatically entitled to work authorization, and the status may be revoked in a streamlined procedure.

 
Back to the top of the page

 

Temporary Protected Status

 

Temporary Protected Status (TPS) is a temporary immigration status granted to eligible nationals of designated countries who cannot return home because of a crisis in the home country or national disaster.  TPS beneficiaries are not required to leave the U.S. and may obtain work authorization for the initial TPS period and for any extensions of the designation. TPS does not lead to permanent resident status, however, and the Attorney General will periodically review the conditions to determine whether to extend the TPS designation for an additional period of time.In order to qualify for TPS, a person must be a citizen or national of a designated country, apply for TPS during the specified registration period, demonstrate that they have been continuously physically present in the U.S. since the temporary protected status designation began, and have continuously resided in the U.S. since a particular date.  A person granted TPS receives an interim status in the U.S. and work authorization, but must re-register each time the TPS benefit is extended.

 
Back to the top of the page

 

VAWA (Violence Against Women Act)

Under the Violence Against Women Act (VAWA), certain battered immigrants who are the spouses and children of United States citizens or lawful permanent residents (LPRs) may self-petition to obtain lawful permanent residency.  In order to seek safety and independence from the abuser, individuals may apply for immigration relief without the abuser’s assistance or knowledge.

Who Is Eligible to Apply under VAWA?

To be eligible for adjustment of status under VAWA, a self-petitioner must demonstrate that he or she is a person of good moral character AND that he or she is eligible under one of the following categories:

    • Spouse: You may self-petition if you are a battered spouse married to a U.S. citizen or LPR.  Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition as derivative beneficiaries.
    • Parent: You may self-petition if you are the parent of a child who has been abused by his or her parent, who is a U.S. citizen or LPR.  Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries, if they have not filed their own self-petition.
    • Child: You may self-petition if you are a battered child (under 21 years of age and unmarried) who has been abused by your U.S. citizen or LPR parent.  Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries.
What Are the Benefits under VAWA?

VAWA allows the victim of abuse to self-petition for lawful permanent residency (green card) and obtain a work permit without the involvement of the spouse.  Through the protections of the Act, the victim can petition him or herself along with his or her minor children without needing the spouse’s consent or cooperation.  A person who applies to adjust status under VAWA is eligible to naturalize in three, rather than five years.

Back to the top of the page

 

U Visas

 

Who Is Eligible To Apply for a U-Visa?
In order to be eligible, an applicant must show that he or she:
    • Has suffered “substantial physical or mental abuse” as the result of one of the following forms of criminal activity conducted in the U.S.: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.
      • Possesses information concerning the criminal activity;
      • Can provide a certification that states the applicant is being, has been, or is likely to be helpful to the investigation or prosecution of the criminal activity (this certification must come from a federal, state, or local law enforcement official, prosecutor, judge, or authority that is investigating the criminal activity); and
      • That the criminal activity violated U.S. law or occurred in the United States (including Indian country and military installations) or the territories and possessions of the United States.

It is not relevant whether the perpetrator of the crime has lawful immigration status in the U.S.  Nor does it matter whether the person is actually convicted of the crime.

What Are the Benefits of the U-Visa?

Approved U-visa petitioners will be granted temporary legal status and permission to work.  After three years, you will be eligible to apply for lawful permanent resident status (green card).  U-visa holders can remain in the U.S. for a period up to four years with a possible extension in certain cases.

If the Victim Was a Minor, Does He Or She Have to Cooperate with Law Enforcement?

In cases where the petitioner is under the age of 16 or is incapacitated or incompetent, the participation requirement can be fulfilled by the parent, guardian, or next friend submitting the necessary evidence on behalf of the petitioner.  This person must provide evidence of his or her qualifying relationship to the petitioner and evidence establishing the age, incapacity or incompetence of the petitioner.

Should a Victim of Domestic Violence Apply for VAWA Or for a U-Visa?

It depends. If an immigrant is an abused spouse or child of a U.S. citizen or lawful permanent resident (LPR), he or she is eligible to self-petition to gain lawful status under the Violence Against Women Act (VAWA).  Victims of domestic violence who are not married to the abuser, or who have been abused by spouses who are not U.S. citizens or LPRs, are not eligible to self-petition under VAWA, but may seek status under the U-visa. It is important to discuss these options with an immigration attorney before seeking any benefits from United States Citizenship and Immigration Service.
 
Back to the top of the page