If you are in removal or deportation proceedings, then you will need an attorney to help you defend against deportation. Deportation proceedings arise when a person is present in the United States in violation of the immigration laws. Deportation proceedings are best understood as two distinct proceedings: the removal phase and the relief phase. In the removal phase, the Department of Homeland Security has the burden of proof to demonstrate that you are in fact in the United States in violation of the immigration laws. If you are found removable, then you will need to find a form of relief to stay in the United States.
REMOVAL PHASE – Why are you in deportation proceedings?
REMOVAL PHASE FOR NON-RESIDENTS
Typical grounds of removability for non-residents (the following list is not by any means an exhaustive list, but merely some of the most typical grounds of removability for non-green card holders):
- Did you enter the United States without being admitted or inspected by an immigration official?
- Did you enter the United States with a temporary visa and overstay the visa without extending it?
If you are not in a legal status and you come to the attention of the Department of Homeland Security (DHS), then DHS will put you removal proceedings. The key issue is whether you can get into a legal status during the relief phase of the removal proceedings.
REMOVAL PHASE FOR RESIDENTS
Typical grounds of removability for residents (the following list is not by any means an exhaustive list, but merely some of the most typical grounds of removability for green card holders):
- Were you convicted of a crime that makes you deportable?
- Did you make a misrepresentation when you got your green card?
- Did you forget or willfully fail to file something that you were supposed to file when you got your green card?
- Did you either forget or willfully fail to disclose negative information when you got your green card?
You already have a legal status and DHS is seeking to revoke your legal status. If you have committed a crime, please go to the Crimes and Immigration page. For issues related to your green card, there might be a way to defeat DHS’s allegations. Otherwise, if DHS proves that you obtained your green card illegally or fraudulently, then you will have to seek relief, typically LPR cancellation of removal.
RELIEF PHASE – Can I get relief from deportation?
At this point, DHS has proven that you are in fact deportable. Now, can you get relief from deportation? Non-citizens with a green card can try to keep their green card with cancellation of removal for LPRs. If a green card holder is not eligible for cancellation, he will lose his green card and be in the same spot as non-citizen who never had a green card. Either way, the non-citizen must now get into a legal status. The follwoing are the various methods that the firm uses to Beat Deportation.
Cancellation of Removal for green card holders
Cancellation is available for green card holders, but you must have already been in the United States for over 7 years in some legal status. Crimes and other negative factors can made you ineligible for this type of relief.
Cancellation of Removal for non-green card holders
Cancellation of removal for non-citizens is available who are not green card holders, but you must have already been in the United States for over 10 years and have a citizen or green card holder relative – spouse, parent, or child. Crimes and other actions indicating bad moral character can made you ineligible for this type of relief.
Adjustment of status
Adjustment of status permits a non-citizen to get a green card based on a petition from an employer or a family member. Even if you previously had a green card, this type of relief is available in certain circumstances. The non-citizen must be admissible to the United States. If not, the non-citizen will need a waiver. Non-citizens may also adjustment status through NACARA – Nicaraguan Adjustment and Central American Relief Act, through refugee and asylum status, and through other various immigration provisions.
Temporary Protected Status
Certain non-citizens from certain countries may qualify to stay in the United States for a specified period of time. Temporary Protected Status (TPS) is typically implemented by the Department of State for a short period of time based on difficulties and disasters in the non-citizen’s country of origin. A TPS recipient can get a work authorization. TPS does give the recipient any other benefits, although the TPS recipient can travel abroad with an advanced parole document (although traveling, even with an advanced parole document can be risky).
In certain circumstances, you might be eligible for a visa. If you were the victim of a particular crime, you might be eligible for a U Visa. If you the victim of trafficking, you might be eligible for a T- Visa.
Deferred Action for Childhood Arrivals is available for certain non-citizens who meet the following qualifications:
- 1. Were under the age of 31 on June 15, 2012
- 2. Arrived in the United States before turning 16
- 3. Continuously resided in the United States from June 15, 2007, to the present
- 4. Were physically present in the United States on June 15, 2012, as well as at the time of requesting deferred action from USCIS
- 5. Entered without inspection before June 15, 2012, or any lawful immigration status expired on or before June 15, 2012
- 6. On the date of the request, are in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are honorably discharged veterans of the U.S. Coast Guard or the U.S. Armed Forces
- 7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors occurring on different dates and arising out of different acts, omissions, or schemes of misconduct, and do not otherwise pose a threat to national security or public safety
Qualifying persons can have their removal proceedings closed. In addition, qualifying persons may receive a work authorization. Persons who have an outstanding order of deportation are still eligible for DACA.
Asylum, Withholding of removal, and protections under the Convention Against Torture
If you have been suffered past persecution in your home country or country of last habitual residence, or because you have a well-founded fear of future persecution in your home country or country of last habitual residence and such persecution is based on race, religion, nationality, political opinion or membership in a particular social group, you may be eligible for asylum and/or withholding of removal. Persecution can take many forms of abuse, but typically encompasses torture, physical abuse, imprisonment, beatings, etc.
You must apply for asylum within one year of your entry into the United States. There are exceptions, but they are very limited. If you did not apply for asylum within the one year deadline, you can still apply for withholding of removal.
If you will be subject to torture upon return to your home country, you can seek protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. For refugees and asylum seekers, this is a relief of last resort, but not insignificant.
With asylum, you can eventually get a green card. Withholding and CAT protection will permit you to remain in the United States and get a work authorization, but you cannot get any further benefits.
What if I cannot get into a legal status or keep my legal status?
At this point, you are going to ordered deported. As a last ditch effort, you can apply for voluntary departure, which will allow you to leave the United States on your own terms. You will have a limited time, up to 60 days (120 days if you chose to apply for voluntary departure before the relief stage), to depart the United States. However, you will not have a deportation on your record.
If you do not wish to get voluntary departure, you will have an outstanding order of deportation. Typically, you will receive a “bag and baggage” letter telling you to report to the Department of Homeland Security on a certain time and date with 40 pounds of luggage. DHS will then physically deport you.
Recent Case Results
July 29, 2016, Citizen of El Salvador granted INA 212(h) waiver after the Immigration Judge did not sustain DHS’s allegations of illegal reentry grounds of inadmissibility
Facts: In 2001, a citizen of El Salvador was physically deported based on a conviction for the Maryland offense of second degree rape by the legacy agency INS. INS deported the citizen of El Salvador despite the fact that the conviction had been reduced to third degree sex offense. Approximately two years later, the citizen of El Salvador illegally returned to the United States. In December 2015, he was picked up by DHS. After he was picked up by DHS, the family of the citizen of El Salvador contacted the firm.
The Firm’s Representation: Our client’s case was one of the most complex cases that the firm has ever handled. The firm initially sought to have our client’s original deportation order rescinded so that our client could be placed in removal proceedings and apply for permanent residency with an INA 212(h) waiver. The firm filed a motion to reopen the INA 238(b) removal order with DHS. However, almost immediately, DHS turned our client over to the U.S. Marshal’s office for a federal prosecution for illegal reentry after deportation for an aggravated felony. The firm worked with the Office of the Federal Public Defender, who represented our client in federal our court, as much as possible. After a year long court battle, the amazing OFPD prevailed and the illegal reentry charges were dismissed because the government had violated the due process rights of our client when he was deported based on an erroneous criminal conviction. Tellingly, DHS did not try to re-instate the flawed 2001 removal order. Instead, DHS placed our client into fresh removal proceedings. Most troubling to the firm was the fact that Notice To Appear, the DHS charging document, alleged that our client was inadmissible for illegal reentry after deportation and/or illegal presence in the United States pursuant to INA § 212(a)(9)(A)(ii), INA § 212(a)(9)(C)(i)(I), or INA § 212(a)(9)(C)(i)(II). These grounds of inadmissibility would have blocked any attempt by our client to become a permanent resident here in the United States. To address these allegations by DHS, the firm asserted to the Immigration Court that it had the authority to collaterally attack our client’s prior removal order upon a showing of a “gross miscarriage of justice.” The firm further asserted that our client never had an opportunity to apply for relief from removal (adjustment of status based on marriage to a permanent resident) in 2001 and 2002, and if he had had that opportunity, he would have been granted permanent residency and he would never have been deported. The firm further asserted that if our client had not been deported and instead had been granted permanent residency, he would never have illegally reentered the United States. The firm asked the Immigration Court to place our client in the the position that would have had in 2001 with an opportunity to apply for relief from removal by applying for permanent residency through marriage to a permanent resident, who now is a U.S. citizen.
Outcome: On July 29, 2016, the Immigration Court agreed with the firm’s position and our client was granted permanent residency with an INA 212(h) waiver. The Immigration Court did not sustain the illegal reentry charges of inadmissibility. Ten days later, DHS decided that it would not appeal the decision and our client was released from DHS detention. All together, our client had been detained by the U.S. Marshals and DHS for nearly two years. Needless to say, our client and his family was extremely happy with the outcome.
March 31, 2016, Citizen of Cambodia receives INA 212(c) relief, seventeen years after he was unjustly deemed ineligible for such relief
Facts: Last year, the firm reported that our client’s removal proceedings had been reopened, sixteen years after our client had been unjustly deemed ineligible for INA 212(c) relief and ordered removed.
The Firm’s Representation: After our client’s case was reopened, venue for the removal proceedings was moved to the Charlotte, North Carolina Immigration Court, near where our client resided. Our client demanded that the firm continue to represent him and the firm agreed that we were in the best position to represent our client moving forward. The firm made the final preparations for our client’s INA 212(c) application for relief and represented our client at his individual hearing on relief in the Charlotte, North Carolina Immigration Court.
Outcome: On March 31, 2016, our client was finally granted INA 212(c) relief, nearly seventeen years after our client had been unjustly deemed ineligible for such relief. Our client was once again a lawful permanent resident. Needless to say, our client was extremely happy with the outcome.
Comment: Our client was a citizen of Cambodia, a country that refused to issue our client a travel document to return to Cambodia after he had been ordered removed to Cambodia. Had Cambodia issued our client a travel document, our client would have been physically deported years ago. Our client was lucky, but sadly thousands of green card holders were deported by a United States immigration system that obstinately and unjustly denied their legal right to apply for INA 212(c) relief, a relief that would have provided these green card holders a chance to retain their legal status and remain in the United States.
January 28, 2016 – After near deportation, citizen of El Salvador enters the United States with a green card
Facts: In early 2013, a citizen of El Salvador came to the firm seeking a solution to his immigration problems.
The Firm’s Representation: This case was one of the most difficult cases that the firm has ever handled because the initial outlook for the case was not good at all. In early 2013, our client and his U.S. citizen wife approached the firm to see what could be done. Our client had an in absentia removal order from 2005 from when he crossed the U.S. border and was placed in removal proceedings but failed to attend his immigration court hearing. In addition, our client had two DUI convictions. There was no way to reopen our client’s case through the immigration court. So, the firm petitioned Immigration and Customs Enforcement (ICE) to join a motion to reopen. Concurrently, the firm submitted a family based I-130 petition to USCIS. The firm knew that reopening with ICE would be dicey with the DUI convictions. In addition, at that time ICE had a stated policy that it would not join motions to reopen so that non-citizens could pursue the Provisional Unlawful Presence Waiver. The firm filed the joint motion request in May of 2013. The request was denied in December 2013. The firm persisted with ICE and asked for a re-examination of the request in January 2014. Several weeks later, ICE detained our client in order to physically deport him. The firm worked fast and filed a stay of removal with ICE which was granted several days later. Fortunately, in August 2014, ICE agreed to reopen and terminate our client’s removal order. Once the removal order was terminated and the I-130 petition was granted, the firm filed an I-601A waiver for our client, which was granted on April 1, 2015. Then, the firm then processed our client’s immigrant visa at the U.S. Embassy in San Salvador, El Salvador.
Outcome: On January 28, 2016, three years after the firm started the representation, our client entered the United States with his immigrant visa.
June 10, 2015 and March 20, 2015, The Board of Immigration Appeals reopened the deportation cases for two citizens of Cambodia
Facts: Last year, two citizens of Cambodia approached the firm to see whether the firm could reopen their deportation orders from the mid 1990s. Both of our clients had serious criminal convictions that made them deportable as “aggravated felons” under the Immigration and Naturalization Act.
The Firm’s Representation: After receiving the results of the FOIA requests, the firm discovered that both of the citizens of Cambodia had been denied the opportunity to seek INA 212(c) relief in their deportation cases. The firm believed that reopening was possible based on the recent Supreme Court cases of Judulang v. Holder, 132 S. Ct. 476 (2011) and Vartelas v. Holder, 132 S. Ct. 1479 (2012), which broadened the availability of INA 212(c) relief. In February, 2014, the Board of Immigration Appeals issued its decision in Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014), which cemented the Supreme Court decisions in the immigration removal system. The biggest challenge that the firm faced in reopening the cases was demonstrating that our clients were eligible for INA 212(c) relief and that they would merit relief as a matter of discretion.
Outcome: Both of our clients’ motions to reopen were granted by the Board of Immigration Appeals. Our clients were lucky because the Cambodia is not accepting criminal deportees from the United States and our clients were permitted to remain in the United States for many, many years after their deportation orders were final. Now, our clients will have the chance to get their green cards back.
February 23, 2015 – Citizen of Guatemala retains his green card with a 212(h) waiver
Facts: In July 2012, a citizen of Guatemala entered the United States and was stopped at the border and placed in secondary inspection. Even though the citizen of Guatemala had a green card, he had several convictions for theft and he was inadmissible to enter the United States. He was placed in removal proceedings and came to the firm for help.
The Firm’s Representation: Our client walked into the firm’s office for a consultation at 5:00 pm. After reviewing our client’s criminal history, it was discovered that our client had a theft conviction and a one year suspended sentence, which in the immigration context is an aggravated felony. Further review showed that our client had walked into the the firm’s office on exactly the 90th day after he was sentenced for his theft conviction. In Maryland, criminal defendants have 90 days to file a motion to reconsider the sentence. In this case, we needed to reduce our client’s sentence by one day to 364 days or less, but the court had already closed for the day. The firm called a colleague in Montgomery County who stated that the court had an after hours drop box. The firm quickly drafted a motion to reconsider sentence and emailed the motion to the firm’s colleague who agreed to deposit our client’s motion in the after hours drop-box for the Montgomery County Circuit Court. What luck! Several months later, the motion was granted and our client’s sentence was reduced to 360 days. The sentence reduction paved the way for our client to seek an INA 212(h) waiver in the Immigration Court. Our client did the personal work to keep himself out of trouble and the firm did the rest.
Outcome: Our client was granted an INA 212(h) waiver and he was able to retain his green card. In a few years, our client can apply for naturalization.
December 1, 2014 – Three of the firms clients released from DHS detention during Thanskgiving week
On Friday November 21, 2014, our client from Mexico was released from DHS custody with a brand new green card when DHS made its decision not to appeal the grant of the green card with an INA 212(h) waiver by the Immigration Judge. For six months, our client had been represented by another immigration attorney who was not aware that the client had a form of relief in the Immigration Court and simply asked for continuance after continuance until the client’s family sought the firm’s help. Although our client had a serious criminal conviction for the Maryland offense of second degree child abuse, the firm was still able to position our client for success in the Immigration Court through careful and meticulous pre-hearing preparation. The firm’s legal strategy was contested by DHS, but the Immigration Judge sided with our theory of our client’s eligibility for a INA 212(h) waiver. Our client was lucky that he had a caring and loving family that stood by him. Our client had spent over a year in DHS detention.
On Tuesday November 25, 2014, two days before Thanksgiving, the firm’s client from Sierra Leone was released from DHS detention with his brand new green card. Our client had convictions for credit card fraud and theft and he was removable for two or more crime involving moral turpitude not arising out of a single scheme of criminal misconduct pursuant to INA 237(a)(2)(A)(ii). The client’s original attorney thought the best plan of action was to file an application for withholding of removal based on a concession that the client’s convictions were “aggravated felonies.” After questioning such a course of action, the client’s family came to the firm for help. The client’s fiance, who was a U.S. citizen, wanted to marry the client. The firm arranged the marriage while the client was detained and then filed an I-130 on behalf of our client and his wife. Once the application was I-130 approved, the client adjustment status in the immigration Court with an INA 212(h) waiver – our client’s convictions were not “aggravated felonies.” Once the application and waiver were approved by the Immigration Judge, DHS waived appeal and our client was released from custody the same day, just in time for Thanksgiving. Our client had spent over one year in DHS custody.
On December 28, 2014, the firm’s client from Liberia was released from custody after DHS decided not to appeal the Immigration Judge’s decision to grant adjustment of status with a refugee waiver for a criminal conviction for the Maryland felony offense of first degree assault. The client had two previous immigration attorneys who were not taking the client’s case in the right direction. The client’s family sought out the firm to take over the case. Preparation was the key to the case – preparation of the various witnesses, both lay witnesses and expert witnesses, and preparation of the documentary evidence. After the Immigration Judge issued a written decision granting the adjustment and waiver, DHS waited the full thirty days in deciding not to appeal the case. Our client was released on December 28, 2014, the day after Thanksgiving, after 11 months of DHS detention, with his brand new green card.
It was a good week for the firm’s clients.
April 14, 2014 – Citizen of El Salvador is returned to the United States after victory in the U.S. Court of Appeals for the Fourth Circuit
Facts: On May 28, 2013, a citizen of El Salvador was ordered deported by the Department of Homeland Security (DHS) according to a final administrative order of removal. The family of the citizen of El Salvador came to the firm for help.
The Firm’s Representation: Our client had a conviction for fourth degree sex offense in Maryland. DHS alleged that the conviction was an aggravated felony, sex abuse of a minor. Immediately, the firm contacted DHS and demanded to file a rebuttal to DHS’s allegations. DHS also refused to turn over the conviction records upon which it made its aggravated felony determination. However, after consulting with their attorneys, DHS relented and turned over the records for inspection by the firm and permitted the firm to file a rebuttal. The firm wrote a rebuttal within several days and submitted it to DHS. DHS refused to change their position and ordered our client removed. The firm filed a petition for review in the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit). Unfortunately, the firm could not stop our client’s physical deportation because the prevailing case law of the Fourth Circuit for stays does not permit a stay of deportation for circumstances such as our client’s circumstances. After filing the opening brief in the Fourth Circuit, the attorneys for the government realized that the DHS’s position was untenable. DHS was forced to rescind the final administrative removal order. The firm then began the process of getting our client returned to the United States. After some reluctance, DHS issued our client a parole document so he could return to the United States. On April 14, 2014, our client returned to the United States.
Outcome: Our client’s case was decided by the U.S. Immigration Court in Baltimore, Maryland. Our client can seek the relief of Temporary Protected Status (TPS). On June 3, 2014, the Immigration Judge re-instated our client’s TPS and our client was released from ICE detention later that day.
October 1, 2013 – Citizen of Mexico receives cancellation of removal for certain non-permanent residents despite convition for Maryland sex offense in the fourth degree
Facts: In January 2012, a citizen of Mexico was detained by ICE – he had no status and a conviction for Maryland fourth degree sex offense. The citizen of Mexico consulted with several very reputable immigration attorneys who all stated that there was nothing they could do for the citizen of Mexico. The citizen of Mexico’s family continued looking for a lawyer and they finally found our law firm.
The Firm’s Representation: The firm first analyzed whether there was any relief available for our client. Our client had lived in the United States for over thirteen years and he had a U.S. citizen wife and three U.S. citizen children. One of our client’s children was very sick. The firm analyzed whether our client was eligible for cancellation of removal, which has very strict eligibility rules regarding criminal convictions. Despite our client’s conviction, the firm realized that our client was eligible for cancellation of removal because his sex offense conviction could be categorized as a petty crime under the crimes involving moral turpitude statute. The firm prepared our client’s case for trial in December 2012 – the firmed filed a mountain of hardship evidence and a written brief on eligibility for cancellation of removal. The hearing went very well, but the Immigration Judge could not issue a decision because the cancellation of removal visas had already been exhausted for the 2013 fiscal year. The Immigration Judge scheduled a hearing for October 1, 2013, the first day of the next fiscal year.
Outcome: The Immigration Judge had written his decision months earlier and had the decision entered on October 1, 2013. The Immigration Judge granted the relief and now our client can now get his green card.
August 12, 2013 – Citizen of El Salvador is released from ICE detention after very nearly being physcially deported
Facts: A citizen of El Salvador was detained by ICE – he had no status and a conviction for possession of marijuana. He hired a very reputable immigration attorney. Nevertheless, the immigration attorney did not know how to deal with a Maryland conviction for possession of marijuana. The Immigration Attorney asked the Immigration Court to grant the citizen of El Salvador voluntary departure, which was granted on May 1, 2013. The citizen of El Salvador’s family was frantic because they did not want him to be deported. The family came to the firm on May 15, 2013.
The Firm’s Representation: First, jumped into action an filed a coram nobis petition in the Maryland state court. Second, the firm filed a motion to reopen and a stay of deportation with the Immigration Court. Time was ticking because ICE wanted to physically deport our client. After several phone calls to the Immigration Court clerks, the stay was granted. Two days later, the detention center asked our client to pack his belongings because he was on the deportation list for the day. Even though the firm had previously contacted ICE and informed them of the stay, the detention center had not received notice. After several further phone calls, our client was taken off the deportation list. The firm had stopped our client’s deportation with only two days to spare. After a hearing on July 26, 2013, our client’s coram nobis petition was granted. The firm then filed a joint motion to reopen and a joint motion for bond in the Immigration Court, with the permission of ICE, and our client was released from ICE custody on $3,000.00 bond on August 12, 2013.
Outcome: Our client lost everything when he pleaded guilty to possession of marijuana – he lost his TPS status, he was placed in removal proceedings, he was detained, and he was almost deported. Tragically, our client was completely innocent of these charges which was borne out on postconviction. Our client is now in the process of getting his TPS back and possibly seeking cancellation of removal in the Immigration Court.
June 11, 2013 – Citizen of Jamaica receives cancellation of removal, despite numerous convictions for drug-related offenses, after DHS drops “aggravated felony” charge
Facts: A citizen of Jamaica was detained by ICE in May of 2012 based on numerous drug-related convictions, the most serious of which was a conviction for possession with the intent to distribute (PWID) marijuana. His family came to the firm for help.
The Firm’s Representation:At first review of our client’s case, the outlook was bleak. DHS had charged our client with an “aggravated felony” for drug trafficking based on our client’s conviction for PWID marijuana. However, during the course of our client’s removal proceedings, on April 23, 2013, the U.S. Supreme Court decided Moncrieffe v. Holder, which held that certain convictions for PWID marijuana may, in some cases, not be “aggravated felonies.” The firm submitted a brief to the Immigration Court that asserted that Moncrieffe v. Holder was directly applicable to our client’s Maryland conviction for PWID marijuana and thus our client’s conviction for PWID marijuana was not an “aggravated felony.” DHS agreed and dropped the “aggravated felony” charge of removability. At that point, our client could proceed with his application for cancellation of removal.
Outcome: On June 11, 2013, the Immigration Judge granted our client’s application for cancellation of removal. Our client was released from ICE custody several hours later.