Removal proceedings are hearings by the immigration court that determine whether a person, who is a noncitizen, will be removed from the United States. Within the United States, any person who is a noncitizen may be subject to removal if they qualify for one of the grounds of inadmissibility or deportability that is contained in the Immigration and Nationality Act, some of the grounds include criminal convictions, drug related convictions, overstaying one’s visa, violation of one’s immigration status, etc. Legal Permanent Residents (LPR) can also lose their status as permanent residents and be subject to removal, if they violate certain immigration law provisions.
People in deportation proceedings have the right to counsel. The counsel will be at the person’s own expense.
Defense from Removal
If a person is in removal proceedings, there are defenses from removal, such as asylum, withholding of removal, adjustment of status, cancellation of removal, to name a few.
Withholding of Removal
Withholding of removal can be utilized if a person applies for asylum while in removal proceedings and either does not qualify for asylum or asylum is not granted. Withholding of removal cannot translate into any kind of permanent residence.
CAT: convention against torture claims
CAT provides protection for people who have a high possibility of being tortured should they be deported to their home country. The United States government cannot deport a person when there is a risk of torture. Should protections under CAT be granted, the removal of an individual is deferred.
Cancellation of Removal
Cancellation of removal is a form of relief from removal. “Green card” holders in removal can apply for cancellation if they meet the following criteria: having been lawfully admitted as a permanent resident for at least 5 years, having resided in the US continuously for 7 years, and not having any aggravated felony convictions. Nonpermanent residents can apply if they meet the following criteria: having been physically present in the US for at least 10 years, being a person of good moral character for those 10 years, not having outstanding criminal convictions, having a qualifying relative.
Deferral of Removal
Adjustment of Status
Someone in removal proceedings can apply for adjustment of status as defense from removal, if qualified. The application is filed with the Immigration Judge.
Stay of Removal
A stay of removal prevents the execution of an order of deportation. An applicant can apply for a stay of removal but it is not permanent and merely delays the execution of the order.
If a person gets into removal proceedings as a result of a criminal conviction, there is a procedural way to vacate the old plea, reopen the criminal case, and potentially alleviate immigration consequences. This is a very helpful and critical tool that helps terminate removal proceedings.
There are two ways to request asylum
– affirmative asylum application – when the applicant is not in removal proceedings
-defensive asylum application – when the applicant is in removal proceedings
In order to apply for asylum, the applicant must demonstrate that there is genuine fear of persecution based on race, religion, nationality, political opinion and/or social group membership.
It is strongly encouraged that an attorney be retained for an asylum application because the application must include proper evidence so that it can be processed as timely and efficiently as possible. Attorneys are also aware of what immigration officers are looking for and can be helpful in all aspects of the filing and processing.
If one is married to a U.S. citizen or a lawful permanent resident (“Green card” holder), the citizen or resident spouse can submit an alien relative petition on behalf of a foreign national spouse. Different rules apply whether the spouse is a citizen of a permanent resident. For more information, please contact our office at your convenience.
Adjustment of Status
Adjustment of status is a process of becoming lawful permanent resident in the US. It is available to foreign nationals who are presently in the United States.
Applicants for immigrant or nonimmigrant visas who are outside of the U.S., must get the appropriate visas at a US consulate or embassy overseas.
A US citizen who has a foreign fiancé not currently within the US can apply for the K-1 visa. This visa allows for the applicant’s foreign fiancé to travel to the US to get married to their US citizen sponsor within 90 days. The status can be adjusted to that of a permanent resident after marriage within the US.
H-1B are temporary visas for a nonimmigrant of the US that allow them to be employed in highly specialized fields. A specialized field is one that requires a bachelor’s degree or higher for that position. In order to be eligible for this visa, one must have a job offer.
L-1 visas are short-term visas that are suitable for people who work in an international company that has offices or affiliated offices both in foreign countries and the US. In order to qualify for this visa, the applicant must have worked for the company for at least1 of the last 3 years.
R-1 visas are temporary visas strictly for religious workers coming to the US to be employed in a religious vocation or work part time for a non-profit organization. In order to qualify for this visa, the applicant must have been a member of a religious vocation for at least two years.
Labor certification, or PERM, is the process used to obtain permanent status based on employment.
Process: application, interview, exams
In order to become a naturalized citizen of the US, the applicant must have been a resident of the US for at least 5 years (3 years if filing as a spouse of a US citizen) and been physically present in the US for a certain amount of time. After the application is filed, the applicant is required to appear for an interview with an immigration officer and pass both, the English language and the American civics tests. There is test preparatory material available on the USCIS website.
It is very important that prior to applying for naturalization, the applicant with prior criminal convictions consults with an attorney, as application for naturalization in some cases may trigger removal proceedings being initiated.
Derivative of Citizenship
Minor children automatically become citizens through the naturalization of their parents if certain conditions are met.