A Lawyer's role is Preventing Removal or Deportation
Comprehensive immigration reforms are no closer to coming about now than they were when President Obama was elected in 2008. The President is determined to see reforms enacted into law during his tenure and in the interim has signed Executive Orders to protect certain individuals from being removed until Congress takes action.
Those orders of the president include:
- DACA Relief For Early Arrivals
- DHS Prosecutorial Discretion to Terminate Proceedings and Administrative Closure
- DAPA (Deferred Action For Parental Accountability) Currently pending Review at 5th Circuit Court of Appeals
Obtaining Bond for Release
As many facing removal from the U.S. are detained pending an initial court hearing, obtaining an early release is the first action of immigration counsel. To persuade a judge to release one must prove the following:
- a) Lawful admission or a pending application to obtain lawful admission - or
b) Proof of relief from removal by way of asylum, cancellation of removal or adjustment of status
- Demonstrating a release poses no danger to others Proof that relief from removable is probable to show one will attend future hearings
- Not subject to Mandatory Detention for an arrest of conviction.
A non-citizen can enter removal proceedings for a number of reasons, Relief from Removal is available in these proceedings, and an experienced immigration lawyer can help you understand which forms of relief are available to you and which are your strongest options. Here is a brief overview of some common forms of relief:- Adjustment of Status - Some non-resident aliens can adjust status to lawful permanent residence through an immediate relative who is a U.S. citizen.- Cancellation of Removal - Non-resident aliens and lawful permanent residents who are subject to removal (deportation) can attempt to cancel their deportation and secure a Green Card.
Criminal Convictions / Cancellation of Removal
DHS is now giving priority to criminal aliens and lawful permanent residents and issuing Notices to Appear (NTA) before an Immigration Judge to conduct a hearing to determine if respondent has committed a crime warranting removal from the U.S.
There are a number of challenges which must be over come to prevail in Immigration Courts:
- Is Respondent eligible for Bond (see this site regarding bond application)?
- If Respondent is undocumented does he or she have qualifying relatives (spouse, parents, children) who would suffer exceptional and extremely unusual hardship were respondent deported from the U.S.?
- Does the criminal conviction preclude one from requesting cancellation of removal?
- If Respondent is a Lawful Permanent Resident does the commission of the crime occur at least 5 years after obtaining permanent residence?
- Is the crime committed by the LPR an aggravated felony or particularly serious crime precluding applying for cancellation of removal?
- If allowed to pursue cancellation of removal, can respondent prove the equities in his or her case (good moral character, hardship if removed) outweigh the seriousness of the crime?
Appeals to the Board of Immigration - Appeals (BIA) Many decisions by USCIS field office or by an Immigration Judge can be appealed to the Board of Immigration Appeals for further review.
Appeals to the Ninth Circuit Court of Appeals - Decisions by the Board of Immigration Appeals, District Courts, or other bodies of review can be appealed to the Circuit Court level if an immigrant’s rights have been violated.
The 5 Bases for Asylum are:
- Membership in a Social Group
- Political Opinion.
One must prove with documentation, witness testimony and other evidence that ones self or family has been persecuted in their own country in the past and because of that persecution one has a "credible fear" of returning to their home country.
For harm or suffering to be considered persecution, it must have be inflicted by either the government or persons or organizations the government is unable or unwilling to control.
The following questions must be answered to determine whether an asylum application can be approved and permanent residence in the United States awarded:
- Has your personal safety, life or freedom ever been threatened on account of Your Race.
- Have your beliefs, practices or association in a Church, Synagogue, Mosque, Temple or other Religious Group caused you or your family to be persecuted?
- Are you a member of an ethnic group or nationality which has suffered persecution in your home country and have you or your family ever been arrested, detained, threatened or abused because of such membership?
- Are you or your family a member of any in a social group such as military, gender, sexual orientation, dissident or other group which has been persecuted in your native country and have you or your family ever been selected out for individual persecution?
- Are you or your family a member of any political party or organization that has been subject to persecution for actively expressing such political opinions?
Filing Deadline - Work Authorization
Petitions for Asylum must be filed within 1 year of entry into the United States, absent extraordinary circumstances. Upon filing for Asylum a work permit can be issued after 180 days.
Asylum trial preparation and presentation. A successful Asylum Hearing and award of permanent residence requires extensive documentation and witness preparation by an experienced trial attorney.