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
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 is now pending before the U.S. Immigration Court in Baltimore, Maryland. Our client can seek the relief of Temporary Protected Status.
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 El Salvador’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.
May 2, 2013 – Citizen of El Salvador is released after one year of ICE detention
Facts: A citizen of El Salvador was detained detained by ICE on May 8, 2012 and ordered deported on December 3, 2012. His fiance came to the firm for help.
The Firm’s Representation: First, the firm had to reopen our client’s immigration case. In early January 2013, the firm filed a motion to reopen with the Immigration Court, which was eventually granted. Then, the firm reviewed the underlying reason for the ICE detention – our client’s conviction for sex offense in the fourth degree. Unfortunately, our client had received really bad advice from his criminal defense attorney who advised our client to decline an offer of Probation Before Judgment from the sentencing judge. After analyzing the conviction and sentencing, the firm came to the realization that if our client had accepted the Probation Before Judgment, he would not have been subject to mandatory detention in the immigration context. The firm immediately filed a petition for post-conviction relief in the Circuit Court of Maryland.
Outcome: On April 22, 2013, the post-conviction petition was granted. On May 2, 2013, based on a motion for reconsideration of bond in the Immigration Court, bond was granted and our client was released from ICE custody later that same day. Naturally, our client and his family were thrilled to be released after almost one year of detention that was caused by bad advice from his criminal defense attorney. Our client’s immigration case remains pending in the Immigration Court, but our client now had several options available to him to get into a legal status.
March 12, 2013 – Citizen of El Salvador is granted a green card through NACARA after being voluntarily placed in removal proceedings
Facts: In September 2012, a citizen of El Salvador was desperate to get his green card. He had been in the United States for nearly 25 years. He was eligible for NACARA (Nicaraguan And Central American Relief Act), but he could not apply to USCIS to get his green card. His previous attorney billed him thousands of dollars, but ultimately, the attorney did nothing for the citizen of El Salvador. The citizen of El Salvador sought the firm’s help.
The Firm’s Representation: The firm first analyzed whether there was any relief available for our client. The form realized that our client was eligible for NACARA. However, our client never applied for asylum. Because our client never applied for asylum, USCIS did not have jurisdiction over his NACARA application. Only the Immigration Court had jurisdiction to adjudicate his NACARA application. The firm told our client that he had to be placed in removal proceedings to get a green card. Of course, our client was very concerned about being placed in removal proceedings, but the firm assured him that everything would be okay. The firm placed our client in removal proceedings. The firm attended one status hearing with our client in the Immigration Court in January 2013, whereupon a final hearing was set for March 12, 2013.
Outcome: On March 12, 2013, our client was granted NACARA special rule cancellation of removal and granted a green card.
March 11, 2013 – Citizen of Sierra Leone wins CAT protection based on sexual orientation despite three “aggravated felony” convictions
Facts: A citizen of Sierra Leone was placed in removal proceedings and charged as an “aggravated felon.” His family came to the firm for help.
The Firm’s Representation: The firm took our client’s case and discovered that our client had a viable claim under the Convention Against Torture (CAT). The firm asserted that our client would be harmed in his home country of Sierra Leone based on his sexual orientation.
Outcome: Based on the firm’s extensive documentation and testimony from an country conditions expert, on March 11, 2013, the Immigration Judge granted our client CAT protection. Our client is awaiting a decision by DHS whether to appeal the case to the Board of Immigration Appeals.
Febraury 20, 2013 – Green card holder from Guatemala receives cancellation of removal despite two convicitons for firearm possession
Facts: A citizen of Guatemala had been convicted of two separate firearm possession offenses. He was arrested and placed in detention by ICE. He turned to the firm for help.
The Firm’s Representation: On January 23, 2013, the firm began its representation. Our client had a green card and had been a resident for many years and the relief of cancellation of removal is the one of the most generous reliefs available in the Immigration Court. Nevertheless, our client had two convictions for deportable offenses and numerous contacts with law enforcement. The firm quickly gathered evidence of positive equities, interviewed our client, interviewed witnesses and had our client’s case ready for trial on February 20, 2013, less than a month after retention.
Outcome: On February 20, 2013, our client was granted cancellation of removal and he was released from ICE detention the next day.
August 27, 2012 – Citizens of Korea have their removal proceedings terminated after lengthy court battle
Facts: A mother and her two sons, who are citizens of Korea, approached the firm with a very complicated immigration case. Prior to retaining the firm, five different immigration law firms had turned them down.
The Firm’s Representation: ICE alleged that our clients were deportable because the mother’s husband (and the sons’ father) had obtained a labor based immigrant visa by fraud, and thus our client’s were inadmissible when they adjusted status. The firm took the position that had our clients entered the United States with the fraudulent immigrant visa, they would have been inadmissible. However, our clients adjusted status and under Fourth Circuit case law, adjustment is not the same as admission, as that term is defined in the Immigration and Naturalization Act.
Outcome: After extensive briefing by both the firm and ICE, the Immigration Judge agreed with our position and terminated our client’s removal proceedings on June 20, 2012. Subsequently, ICE filed a motion to reopen the case three week later. The firm filed an opposition. Once, again the Immigration Judge agreed with the firm’s position and denied ICE’s motion to reopen on August 27, 2012.
November 28, 2011 – Citizen of Trinidad and Tobago retains his green card after ICE terminated proceedings. Client released after two years of ICE detention.
Facts: In 1998, a citizen of Trinidad and Tobago was granted lawful resident status. In 2009, he was convicted in Maryland of second degree assault. ICE detained our client and instituted removal proceedings alleging that our client had committed “sexual abuse of a minor.”
The Firm’s Representation: The firm represented our client throughout his entire immigration proceedings. The firm asserted that the charges of removability could not be sustained by a conviction for second degree assault. In December 2009, our client was ordered removed in the Immigration Court. Our appeal to the Board of Immigration Appeals was denied in April 2010. On June 3, 2010, our client was deported to his home country of Trinidad and Tobago. The firm appealed to the U.S. Court of Appeals for the Fourth Circuit. By order of the Fourth Circuit, the case was remanded back to the Board of Immigration Appeals, which remanded the case all the way back to the Immigration Court. After lengthy negotiations with the Department of Homeland Security, our client was granted parole back into the United States on June 3, 2011. In the Immigration Court, once again the Immigration Judge ordered our client deported. The firm filed an appeal to the Board of Immigration Appeals and filed a habeas corpus in the U.S. District Court for Maryland. Concurrent with our client’s immigration proceedings, the firm also filed and successfully obtained post-conviction relief for our client’s 2002 theft conviction.
Outcome: On November 28, 2011, the Department of Homeland Security changed their position on our client’s case and terminated his removal proceedings and released our client from detention. Hopefully, in a couple of years, the firm will be able to file an application for citizenship on behalf of our client.