Top 5 Defenses to Removal Proceedings

Иностранные граждане в U.S. may find themselves defending against removal proceedings because they overstayed or somehow violated the terms of their temporary visa status. Or they may never have had immigration status in the first place. Или, it might be that they have permanent resident status, but committed a criminal act that prompted their “removability”. Каким бы ни был случай, if a foreign national finds themselves having to defend against removal proceedings, it is imperative that they know which options may be available to allow them to remain in the U.S. Below are the most common defenses or strategies employed by foreign nationals in defense of removal proceedings, although this list is far from being exhaustive.

1. Cancellation of Removal

В общем, a non-citizen 1) with an immediate family member who is a U.S. гражданин или законным постоянным жителем и 2) with more than 7 years residence in the U.S. (for lawful permanent residents) ИЛИ 10 лет проживания (for those without resident lawful status) – MAY have available the defense of “Cancellation of Removal” – that is as long as whatever criminal activity (если таковые имеются) the applicant may have been involved in does not establish a ground of legal ineligibility. Также, for non-permanent residents, they must demonstrate that their forced departure will cause an exceptional and extremely unusual hardship for a U.S. citizen or lawful permanent resident parent, супруга или ребенка. A grant of cancellation of removal leads to approval or reinstatement of lawful permanent residence status (зеленая карта).

2. Изменение статуса

The foreign national may have a qualifying relationship to allow them to request that the immigration court – in defense of removal proceedings, approve an application to adjust their status to permanent residence. Most often that relationship will be by way of marriage to a U.S. citizen or a permanent resident who will soon become a U.S. гражданин. Of course other familial relationships may create an avenue to adjust status, as long as a previous visa petition has been approved on their behalf and they otherwise meet all other applicable requirements.

3. Asylum/Withholding of Removal

If a foreign national fears return to their home country because of persecution they may face on account of their race, религия, political belief or social group a defense of asylum or withholding of removal may be available. If granted asylum the foreign national will eventually be eligible to apply for permanent residence. A grant of withholding of removal allows the foreign national to remain in the U.S. на неопределенное время, and with eligibility to renew their employment authorization each year.

4. Vacate Criminal Offense

Sometimes the root of the foreign national’s immigration problem and obstacle to removal defense is a criminal conviction entered after the foreign national took a guilty plea – and without being properly advised of immigration consequences. If a case of ineffective assistance of criminal counsel can be proven (because the criminal defense attorney failed to provide complete advice), then a foreign national may be eligible to have their conviction vacated. В результате, they might be in a position to seek termination of removal proceedings or at least be eligible to apply for relief from removal now that a disqualifying criminal conviction is no longer a factor. Such a project starts with finding a seasoned criminal attorney with the right experience, who will work in conjunction with an immigration lawyer, to attempt to reverse such a conviction.

5. Усмотрение обвинительной власти

Sometimes the foreign national has no legal defense to removal proceedings, mainly because they lack the requisite number of years of residence to qualify for one of the above avenues, or due to some other shortcoming. Although less popular these days in our current immigration enforcement environment, the foreign national can always request that the Department of Homeland Security exercise discretion and not pursue their removal because of some compelling hardship and that the foreign national has an otherwise clean record. Those include hardships arising out of U.S. семейных связей, medical complications and/or conditions in the foreign national’s home country. Конечно, there may be other factors at play to establish a basis to seek prosecutorial discretion.

Наконец, in responding to removal proceedings, a foreign national should retain legal counsel that is experienced in removal defense and has a reputation for being honest and successful in providing such representation.

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