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Deportation and Removal Defense

 

Deportation and Removal Defense: Individuals who have been placed in deportation/removal proceedings and have a case before the Immigration Court may have various forms of relief available to them.  We provide representation before the Immigration Courts in both detained and non-detained proceedings and assist with identifying any relief available to our clients.  We work toward resolving such proceedings with the best possible outcome.  We appear regularly before the Immigration Courts in preliminary proceedings as well as representing individuals in merits hearings and everything in between.  Forms of relief available may include asylum, withholding of removal, protection under the Convention Against Torture, Cancellation of removal for both non-permanent residents and permanent residents, and others.  It is necessary to evaluate each situation on a case by case basis to determine what relief may be available.

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I-130 Petition for Alien Relative

 

United States Citizens and Legal Permanent Residents can petition certain relatives: spouses, children, parents and siblings.  Certain documents, including those to show the relationship, have to be submitted to USCIS and the petition must be filled out thoroughly and correctly in order for a petition to be approved and for an individual to be able to proceed with the next step in the case toward lawful permenant residence (green card).

 

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Application for Adjustment of Status-Green card in the United States

 

Certain individuals are eligible to adjust status in the United States.  Some of these include:
 

• Individuals who have an approved Petition for Alien Relative and a current priority date AND if they have entered the United States legally/with permission.

• Individuals who have an approved Petition for Special Immigrant Juvenile Status and the priority date is current

• Individuals who have an approved U Nonimmigrant Visa AND have been continuously present in the United States for three years preceding the approval of the visa

• Individuals who were granted Asylum status

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Consular Processing – Green Card outside the United States

 

Individuals who have an approved I-130 petition for alien relative, who are outside the United States and whose priority date is current, may consular process.  This means that their case will initially be processed at the National Visa Center.  After receiving the necessary documents, the NVC will schedule an interview date at the embassy in the individuals home country.

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Naturalization

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Lawful Permanent Residents may apply for Naturalization after certain periods of time: If an individual obtained Lawful Permanent Resident status through marriage to a U.S. citizen, AND they are still married and in the relationship with their spouse, they may apply for naturalization after three years.  If you did not obtain your Lawful Permanent Resident status through marriage, you must wait five years to file for naturalization. Note: applications may be filed 90 in advance. 

           

In addition to the three/five year wait time, individuals must take a written civics test.  The USCIS officer will also ask individuals to read and write a few sentences.  In order to pass the test, individuals must speak, read, and write basic English.  There are two exceptions to this rule: Individuals who are 50 or older AND have resided in the United States as a permanent residents for a period of 20 years, or individuals who are 55 or older AND have resided in the United States as a permanent resident for a period of 15 years or if you are 65 years or older and have resided in the United States for a period of 20 years, are permitted to take a simpler version of the civics test in their native language.  Additionally, individuals who have a medical reason why they cannot take the civic portion of the test or do the test in English can apply for a medical waiver.

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I-601A Application for Provisional Unlawful Presence Waiver

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Certain individuals may be eligible for an unlawful presence waiver in the United States to waive the 3/10-year bar triggered when returning the U.S. after a departure.  If an individual entered the United States without inspection (permission) and they have one year or more of unlawful presence in the United States, they are NOT eligible to adjust their status to that of a lawful permanent resident inside the United States. 

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Individuals must meet the following requirements to be eligible for this waiver:

 

1. Individuals must have a qualifying relative: a US Citizen or Legal Permanent Resident spouse or parent (children are not qualifying relatives).

2. Individuals must show extreme hardship to the qualifying relative.

 

NOTE: Before applying for an I-601A waiver, individuals must have an approved Petition for Alien Relative.

 

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Deferred Action for Childhood Arrivals (DACA)

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Deferred Action for Childhood Arrivals is a program which began in August of 2012.  It provided the opportunity to many young people living in the United States to work and go to school or college.  In order to apply for an initial DACA application, which is NOT currently available, you must meet the following requirements:

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                        1.         Individuals must have entered the United States before June 15, 2007

                        2.         Individuals must have entered the United States before age 16

                        3.         Individuals must have been under the age of 30 before August 15, 2012,

                        4.         Individuals must have graduated High School or be enrolled in school

                        5.         You cannot have committed certain crimes

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To be granted DACA, individuals must show that they meet all these requirements. 

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To renew a DACA application and work permit, individuals must show that they have resided in the United States for the last two years (since their last work permit was granted) and that they are currently enrolled in school (if they have not graduated High School since DACA was announced).

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*** Important note: If an individual has any arrests, they must consult with an attorney before filing any application.  If you have any felonies, you are not eligible for DACA ***

 

 

Temporary Protected Status (TPS)

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Several countries have been granted Temporary Protected Status.  To renew TPS, individuals must do so within the designated time period announced by USCIS.  Individuals cannot have more than 2 misdemeanors or a felony to be eligible for renewal of TPS.

           

TPS is ending for Honduras, Syria, Nepal, El Salvador, Haiti, Yemen, Somalia, Sudan, South Sudan and Nicaragua. 

           

If an individual currently has TPS and they are from one of these countries, it is suggested that you consult with an attorney before TPS ends.  We advise that individuals request a complete copy of their immigration file for review before TPS ends, so that they are prepared for any changes that may occur.

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Application for Asylum, Withholding of Removal & Protection under the Convention Against Torture

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Individuals may apply for asylum if they have a reasonable fear persecution (harm) if they are returned to their country of origin. Individuals may be eligible for asylum if they were persecuted on account of the following grounds:
 

                        1.         Race

                        2.         Religion

                        3.         Political beliefs

                        4.         Nationality

                        5.         Membership of a particular social group

 

Individuals only have one year from the date of entry to the United States to apply for asylum. 

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If an individual is in immigration court proceedings, they must apply for asylum before the Immigration Judge.

If an individual is an unaccompanied minor (if they entered the United States before they turned 18 and without a parent), they must apply for asylum by submitting an application to USCIS.  This includes if they are in removal proceedings before the court. 

If an individual does not fall in any of these categories, they may submit an affirmative asylum application to USCIS.  However, it is strongly advised that they consult with an attorney before submitting an affirmative application, as asylum can be difficult to obtain.  The application must be timely filed, and sufficient evidence must be provided, or the case will be referred to the Immigration Court. 

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Cancellation of Removal for Certain Non-Permanent Residents (commonly referred to as the “10-year law”)

 

NOTE:  This relief is ONLY available to individuals who are in removal proceedings before the Immigration Court. 

           

This relief is available for non-permanent residents who have resided in the United States for 10 years, have a qualifying relative (U.S. or LPR spouse, parent or child-under 21) and it would cause extreme and unusual hardship to that relative if the non-permanent resident was removed from the United States.

           

Qualifying relatives are US citizen or lawful permanent resident spouses or children.  Individuals must have documentary evidence that they have resided in the United States for the 10 years, preceding the application.  In addition, individuals must show extreme and unusual hardship to their qualifying relative.  Due to the complicated nature of this type case and all of the requirements that MUST meet, it is strongly advise that individuals consult with an attorney BEFORE filing any application with immigration. AGAIN NOTE: this relief is only available to those individuals in removal proceedings. 

           

Although individuals will be able to obtain a work permit while their cancellation of removal case is pending with the Court, if they cannot meet all of the requirements for cancellation of removal, they will be ordered removed from the United States.  That is why it is important that an attorney review the case and documents before filing any applications to ensure the basic requirements are met.

 

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Application for U-Nonimmigrant Visa

           

Victims of certain crimes are eligible to apply for a U -nonimmigrant visa.  If an individual was the victim of a crime and provided assistance to the authorities regarding this crime, they may be eligible for a U-nonimmigrant visa.  Note: A certification from a governmental entity (police, district attorney’s office, labor department)

           

Once approved this benefit will provide employment authorization for four years.  Individuals may apply to adjust their status to that of a lawful permanent resident after three years from the date their U-visa was approved.  

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Special Immigrant Juvenile Status

           

Children under 21 are eligible for SIJS.  If an individual is a child under the age of 21 and has been abused, abandoned, or neglected (mistreated) by one or both of their parents, they may file for SIJS.  If one or both of the minor’s parents are deceased, they may also apply for this benefit.

           

First, individuals must obtain Guardianship and be issued a Special Immigrant Juvenile Order by a Family Court Judge.  This process is complicated, and it requires the assistance of an attorney.  Individuals must obtain a court designated guardian and the prove abuse, abandonment, neglect or by one or both parents.

           

After obtaining a Special Immigrant Juvenile Order from a Family Court Judge, individuals may apply for SIJS with USCIS.  If an application is approved and the priority date is current, individuals may apply to adjust their status to that of a lawful permanent resident.

           

Note at the present time (9/2018) USCIS is denying applications for individuals over the age of 18 and an appeal will be automatic. 

 

** IMPORTANT NOTE: after obtaining lawful permanent resident status through SIJ, individuals cannot petition for their parent/guardian. **