If you received a Notice to Appear (NTA) from the Department of Homeland Security (DHS), you are in removal proceedings. The NTA states the reasons why the government believes that you should be removed from the U.S. This important document should be reviewed with an immigration attorney as soon as possible. If you have not already, you will soon receive a notice for a hearing date with an Immigration Judge, and it is important to begin strategizing now how you will fight to stay in the U.S. Your hearings can be moved to a venue (location) that is most convenient to you.
Removal proceedings usually have one or more calendar hearings and a single individual hearing with an Immigration Judge. Molina Law Group can represent you in these hearings to help you obtain the best possible outcome.
Some forms of relief available to avoid removal from the U.S. include:
Cancellation of Removal for Certain Permanent Residents (“42A”)
Legal Permanent Residents (LPRs) can be removed from the U.S. after committing certain criminal acts. A one-time waiver called Cancellation of Removal can be provided to the LPR if he or she:
- Has been an LPR for at least 5 years
- Has resided in the U.S. for at least 7 years after having been admitted in any status
- Has not been convicted of an aggravated felony, AND
- Has not received Cancellation of Removal or 212(c) relief already.
The list of aggravated felonies includes crimes that are not felonies in criminal court. Only an experienced immigration attorney will be able to tell you if your conviction will disqualify you from Cancellation of Removal.
Even if you qualify for relief, you must still convince the Immigration Judge that you deserve to remain in the U.S. as a matter of discretion. Molina Law Group has the experience necessary to assist you in obtaining a favorable decision from the Judge.
Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents (“42B”)
Anyone who is in the U.S. without valid status may qualify for relief if he or she:
- Has been physically present in the U.S. for at least 10 years
- Has been a person of good moral character
- Has not committed certain crimes, AND
- Can establish that his or her removal would result in “exceptional and extremely unusual hardship” to his or her U.S. citizen or LPR spouse, parent, or child
The “exceptional and extremely unusual hardship” requirement is a very high standard that is difficult to meet. For this reason, it is important to choose an attorney with the experience necessary to investigate your particular situation to determine what evidence should be presented.
If you or your child has been abused by your LPR or U.S. citizen spouse, you may be eligible for VAWA (Violence Against Women Act) Cancellation of Removal. The requirements for this application are slightly more relaxed:
- Has been physically present in the U.S. for at least 3 years
- Person of good moral character
- Not committed certain crimes, AND
- Can establish that his or her removal would result in “extreme hardship” to self and/or his or her U.S. citizen or LPR parent or child
In certain situations LPRs who are ineligible for Cancellation of Removal may be able to remain in the U.S. with the approval of an I-601 waiver if they can show that removal from the U.S. would result in extreme hardship to their U.S. citizen or LPR parent or spouse. Additionally, they must prove that they merit a waiver based on a number of discretionary factors including:
- Rehabilitation from past criminal activity
- Poor country conditions in native country
- Family ties in the U.S.
- Length of residence and legal work history in the U.S.
- Evidence of service to the community
Molina Law can help you determine whether you qualify for a waiver of inadmissibility. We can help you present the necessary evidence in the best possible light.
Prosecutorial Discretion and Deferred Action
If you do not qualify for any other relief, or if relief is denied in your case, you may still request that the Judge administratively close your case based on an agreement with the Chief Counsel’s office that you should not be removed as a matter of discretion.
Certain people who arrived in the U.S. as children may be eligible for Deferred Action for Childhood Arrivals (DACA). Basic eligibility requirements include:
- Born on or after June 16, 1981
- Came to the U.S. before the age of 16
- Continuously resided in the U.S. from June 15, 2007 to the present
- Physically present in U.S. on June 15, 2012 and at the time of filing
- Entered without inspection before June 15, 2012 or legal status expired as of that date
- In school, graduated from high school, or obtained a GED
- Not convicted of a felony, significant misdemeanor, or three or more other misdemeanors
- Not a threat to national security or public safety
Note that generally to receive DACA you must be 15 years old at the time of filing, however, this age requirement is waived for children who are in removal proceedings.
Defensive Asylum, Withholding of Removal, and C.A.T.
Individuals fleeing persecution in their home countries may be eligible to seek asylum in the U.S. If you are in removal proceedings, the asylum application (I-589) must be filed with an Immigration Judge in court before the one-year anniversary of your entry to the U.S. However, it can also be filed earlier in order to qualify for a work permit while your application is pending before the court.
Certain individuals are barred from obtaining asylum. These include people who:
- Have legally resettled in another country prior to coming to the U.S.
- Were convicted of a “particularly serious crime”
- Pose a danger to the security of the U.S.
- Have participated in the persecution of another person
- Have engaged in terrorist activity
- Have committed a non-political crime outside the U.S.
If you are granted asylum, some family members in the U.S. can also be granted asylum through your application, and you will have the ability to petition for other family members to come to the U.S. After one year you will be able to apply for lawful permanent resident status. After five years as a resident you can apply for U.S. citizenship.
If the one-year deadline has already passed, you may qualify for an exception. If not, you may still qualify for Withholding of Removal. To win Withholding of Removal, you must successfully demonstrate that it is more likely than not that you will face persecution based on your face, religion, nationality, political opinion, or membership in particular social group if you are returned to your home country.
If you are granted withholding of removal your family will not receive this status and you will not have the ability to become a lawful permanent resident or U.S. citizen. You will still be granted work authorization and acknowledgement that you will not be returned to your country of origin.
If you do not qualify for asylum or withholding of removal, you may still qualify for protection under the United Nations Convention Against Torture (CAT). This is designed to protect individuals from being returned to countries where they will likely face severe pain or suffering (physical or mental) that is intentionally inflicted by a public official, with the consent of a public official, or inflicted by or with the consent of a person acting in an official capacity.
Molina Law Group can help you with the specific steps required for requesting protection in the U.S. Contact our office to see if you qualify.
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