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Deportation Defense - Cancelation of Removal

Immigrating to the United States is the dream of a lifetime for many people around the world. Each year, however, this dream is jeopardized for thousands through a procedure known as Removal, formerly called Deportation. The Immigration and Nationality Act (INA) establishes six major categories under which an alien can be removed from the United States:

  • Alien was inadmissible at the time of entry or adjustment of status or has somehow violated his status;
  • Alien was convicted of certain criminal offenses;
  • Alien has failed to register or has falsified his documents;
  • Alien has engaged in terrorism or is threatening US national security or foreign policy;
  • Alien has become a public charge;
  • Alien has unlawfully voted.

The Removal / Deportation Proceedings
In a typical deportation proceeding, the foreign national in question is arrested and detained by an agent for Immigration and Customs Enforcement (ICE). Shortly thereafter, the individual will receive a “Notice to Appear” which outlines why the alien should not be allowed to remain in the United States. Immigration Judge will then determine bond eligibility and will schedule a removal hearing. Once the decision is made after the hearing, an appeal from the immigration judge’s ruling may be filed at the Board of Immigration Appeals within 30 days of the decision. It is important to note that the Board of Immigration Appeals makes its ruling on appeals based solely on the printed record of the previous proceeding, the immigration judge’s decision and the attorney’s legal briefs. The immigrant in question is not permitted to testify during the appeal process.

Our experienced team of deportation defense attorneys understands the fear and uncertainty one feels when they or a loved one has been issued a notice to appear for a deportation or removal hearing. Our firm can help you with every aspect of the deportation hearing process including preparation for hearings and drafting necessary documents. With all cases, our immigration law firm will take the time to determine whether there is basis for deportation. If our immigration lawyers find that there is not enough evidence to warrant deportation, we will move quickly to terminate the proceedings. If there is reasonable evidence to suggest that deportation is in order, we will help you explore strategies to avoid removal such as obtaining political asylum, assisting you in attaining permanent residency status, cancellation of removal or by obtaining a waiver or pardon under the Immigration and Nationality Act. If there is no avenue of relief, we can assist in negotiations which will allow you to leave the country voluntarily rather than under the order of an immigration judge; this action can minimize the long-term consequences of deportation so that you have the opportunity to re-enter the United States in the future.

Grounds for Removal
Courts have long ago recognized the power of United States Congress to deport non-citizens. The seminal case on point is Fong Yue Ting where United States Supreme Court stated that such power is “inherent in Congress’ sovereign power and in international norms to which everyone adheres.” 

Inadmissibility at Entry and Status Violation
Any non-citizen who was inadmissible when they entered the country or adjusted status or violated conditions of their status are removal from the United States. INA 237(a)(1). INA allows removal of any person who should not have been granted admission because of inadmissibility of exclusion ground in effect at the time of admission. This means that someone who has been lawfully present in the United States, having never committed any offenses that might subject such person to removal, can still be removable for offenses committed prior to admission.

Any violation of an INA or any other US law subjects an alien to removal. INA 237(a)(1)(B). Failure to comply with conditions imposed at entry or failure to maintain the status in which they were admitted also constitute grounds for removal. INA 237(a)(1)(C). Examples include overstaying the time limit of a nonimmigrant visa or accepting employment without authorization. Permanent residents whose status was granted as a result of a marriage to a US citizen of less than two years, or investors becomes removable if they fail to have their status converted from condition to unconditional. INA 237(a)(1)(D). Non-citizens who knowingly and intentionally encourages, or helps another to illegally enter the US is removable, however, a waiver exists for this provisions if the person who illegally entered was a spouse, child or parent of the non-citizen, and such a waiver would serve humanitarian purpose, assure family unity, or would be in the public interest. INA 237(a)(1)(E).

Non-citizen may also be removed if the immigrant status was gained by committing marriage fraud, defined as marrying a US citizen solely for the purpose of obtaining immigration benefit. Marriage fraud is presumed if a non-citizen's admission was based on a marriage of less than two years before admission and was terminated within two years of admission. This presumption can only be rebutted by demonstrating that the marriage was bona fide.

Immigration law provides a waiver for non-citizens determined to be inadmissible at the time of admission for misrepresentation, if the non-citizen possess an otherwise valid immigrant visa, and the non-citizen is the spouse, parent or child of a US citizen. INA 237(a)(1)(H). A waiver is also available for victims of domestic abuse.               

Removal Due to Criminal Offense / Conviction
Most often non-citizens find themselves in removal proceedings after being convicted of an aggravated felony or a crime of moral turpitude. INA 237(a)(2)(A)(iii) states that any alien who is convicted of aggravated felony at any time after admission is removable. The current list of aggravated felonies is found in INA 101(a)(43) and among others includes “sexual abuse of a minor” and “a crime of violence (as defined in section 16 of the Title 18) for which the term of imprisonment is at least one year.” INA 101(a)(43)(A) & (F).

Crime of Violence
Section 16 of the Title 18 defines Crime of Violence as “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop­erty of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” It’s also important to remember that in determining whether a particular crime is an aggravated felony, federal law, not state law, will control. See Lopez v. Gonzales. So even if a crime is a misdemeanor under a state law it will still be categorized as an aggravated felony if it falls within INA definition of 101(a)(43). Also, as mentioned earlier, 237(a)(2)(A)(iii) requires a conviction for an aggravated felony offense; conviction is defined in INA 101(a)(48)(A) and includes a formal judgment of guilt by either a judge or jury, or a guilty or no-contention plea, or an admission of sufficient facts to warrant a finding of guilt, plus some form of punishment, penalty, or restraint on liberty (includes fine). INA 101(a)(48)(B) further states that any reference to term of imprisonment or sentence includes the period of incarceration ordered by a court of law regardless of any suspension or execution of that sentence in whole or part.  Only the actual length of sentence imposed by a court of law will determine if aggravated felony comes into play. A reversal on appeal due to substantive or procedural shortcomings will end the underlying reason for removal, this means that even if a guilty plea is dismissed upon successful completion of community service or other rehabilitation, negative immigration consequences will still remain – see Matter of Penu. Also, a full and unconditional pardon by a state governor will eliminate the deportation consequences of a conviction. See (237(a)(2)(A)(vi) and Balogun v. US Attorney General.

For an alien consequences of being convicted of a Crime of Violence can be very severe. In addition to being removable, the alien will be permanently barred from re-entering US and may be sentenced to up to 20 years prison if he re-enters illegally. See INA 212(a)(9)(i)(A), 276(b). Furthermore, the alien will not be able to establish good moral character and thus will be forever barred from naturalization. See 101(f)(8), 316(a). Most importantly the immigrant can be placed in expedited removal proceedings – see INA 238(a)(1), will be subject to mandatory detention – see INA 236, will not be eligible for most forms of discretionary relief – see INA 240A, 240B, will not be eligible for cancelation of removal – see INA 240A(a)(3), and will not eligible for voluntary departure – see INA 240B(a)(1) & 240B(b)(1)(C). Lastly, removal orders based on an aggravated felony conviction are not subject to judicial review, although federal courts do have jurisdiction to determine whether a particular offense is an aggravated felony under federal law and to review constitutional claims and questions of law. See INA 242(a)(2)(C)-(D).   

Crimes of Moral Turpitude
There is more information coming soon, if you'd like to see how we can assist you in this area please contact us today.

Drug Offenses
There is more information coming soon, if you'd like to see how we can assist you in this area please contact us today.

 


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