by Moses Apsan, Esq.
Immigration attorneys, like most of the country are occupied with the economy and the bottom line in their practice. Meanwhile the immigration environment in the United States is set for a major modification following the Republican wave in the recent election which caused a switch in party control in the House, and a reduction in the Democratic majority in the Senate. This event will likely cause a major shift in the immigration bar's current practice.
At a first glance it seems that talks of legalization or even a temporary worker program will move to the back-burner. Just like the year McCain-Kennedy bill passed the Senate, the new tea bagging Republican House will most like continuing their "NO" approach to any immigration benefits. Additionally more enforcement legislation is likely to pass Congress. Perhaps a reduction in immigration benefits will follow. It is possible that the Obama Administration may increase enforcement both in the interior and the Mexican border even further than their current record breaking deportations, that statistics reflect.
What this could mean for immigration lawyers is that business from ICE roundups will likely geometrically increase while family-immigration and employment-immigration based practices will most likely experience a slow down. Deportation (Removal) work will likely increase steadily. The greatest fear is that the anti-immigrant representatives are getting poised to attempt at controlling the national conversation on immigration reform.
America's immigration story continues, but meanwhile let's take a look at what defenses are available to an illegal alien place in deportation proceedings under current immigration laws.
The Deportation or Removal Proceeding
When an Immigration Judge has found that an alien is illegally present in the United States, it does not necessarily mean that the person must be deported. The Immigration Laws provides many types of ways to prevent Removal (deportation). The most commonly used are (1) waivers of excludability and deportability; (2) cancellation of removal for permanent residents; (3) cancellation of removal for non-permanent residents; (4) suspension of deportation; (5) adjustment of status to permanent residence; (5) asylum and withholding of deportation; (6) legalization and registry and, (7) voluntary departure.
The immigration law lists various grounds by which an person in the middle of a deportation proceeding may apply for a Waiver. All the waivers available require that the alien’s establish hardship to himself or to his close family members if he were to be removed from the U.S. For example a person who is being deported for certain criminal grounds may be eligible for a waiver under §212(h) if the failure to admit him to the U.S. would result in "extreme hardship" to his LPR or USC spouse, parent(s), son(s) or daughter(s)., Similarly a person who has committed fraud or a material misrepresentation may apply for a waiver under §212(i) if his deportation from the U.S. would result in "extreme hardship" to his lawful permanent resident (LPR) or U.S. citizen (USC) spouse or parents.
Cancellation of Removal for Permanent Residents
A grant of an Application for Cancellation Removal has the effect of "pardoning" or "forgiving" the basis for the alien's deportability and returning his status to that of a lawful permanent resident. Only certain grounds of deportability may be waived by a grant of Cancellation of Removal. Moreover, under new immigration laws, an alien is only eligible for one (1) grant of such relief in a lifetime. A denial of an Application for Cancellation of Removal results in an administrative order returning the alien to his country of designation (citizenship, nationality, or last residence) through a forcible order effectuating his removal or deportation from the United States
Note that an Immigration Judge will balance certain positive factors against negative factors in determining whether an alien should be permitted to remain in the United States. In the case of Permanent Residents, a granted application will have the effect of allowing the lawful permanent resident to maintain his status and remain in the United States. In the case of Illegal Aliens, a granted application will have the effect of allowing an undocumented alien or nonimmigrant to become a permanent resident of the United States. An Immigration Judge will consider such factors as family ties, history of employment, community service, long residency in the United States, property & assets, criminal record, immigration violations, rehabilitation & remorse, etc. Both types of applications for Cancellation of Removal are discretionary in nature, permitting an Immigration Judge to grant or deny the application as he deems fit. Even if an alien can demonstrate all of the above factors, this does not mean that an application will be granted, only that he has demonstrated prima facie (minimum standards for eligibility) eligibility.
This section of the law allows the Attorney General (usually an Immigration Judge or the Board of Immigration Appeals) to cancel the removal of a lawful permanent resident from the U.S. if:
1. He has been a Lawful Permanent Resident for a minimum of five years;
2. Has resided continuously in the U.S. for a minimum of seven years after being admitted to the U.S. in any status (prior to the institution of removal proceedings);
3. He has not been convicted of an aggravated felony;
4. He is not inadmissible from the U.S. on security grounds.
The following classes of persons are ineligible for cancellation of removal:(1) Certain crewmen; (2) Exchange visitors (in "J" status) who received medical training in the U.S.; (3) Persons who have persecuted others; (4) Persons who have previously been granted cancellation of removal, suspension of deportation (See below.) or relief under §212(c); and (5) Persons who committed certain criminal offenses prior to the accrual of the required seven years.
Positive factors include: (1) Close family ties within the U.S.; (2) Long time residency in the U.S.; (3) deep roots in the community (4) ill child (5) Hardship to person and immediate family; (6) Service in U.S. Armed Forces; (7) Employment history; (8) Ownership of property and business; (9) Service to the community; (9) payment of taxes (8) Rehabilitation (if criminal record exists).
Negative factors include: (1) failure to pay taxes (misrepresentation to the court (3) the nature and circumstances of the removal grounds; (4) Criminal record; and (4) other evidence of bad character.
Cancellation of Removal for Non Permanent Residents
Many people know this as the “10 year law.” It allows the Attorney General (usually an Immigration Judge or the Board of Immigration Appeals) to cancel the removal of a non-permanent resident from the U.S. if:
1. He has been physically present in the U.S. for a continuous period of ten years prior to the institution of removal proceedings. (This requirement is not applicable to persons who have served a minimum of 24 months in the U.S. Armed Forces, was present in the U.S. during his enlistment or induction, and is either serving honorably or has received an honorable discharge.) "Continuous" means that the person can not be out of the U.S. for more than 90 days at a time, or 180 days in the aggregate, during the ten-year period.
2. He has been a person of good moral character for ten years;
3. He cannot be inadmissible under §212(a)(2) or (3) (criminal and security grounds) or deportable under §237(a)(1)(G) (marriage fraud), (2) (criminal grounds), (3) (failure to register and falsification of documents) or (4) (security and related grounds).
4. He established exceptional and extremely unusual hardship to a qualifying U.S. citizen or lawful permanent resident spouse, parent or child. (Note: not hardship to the applicant).
Cancellation of Removal for Battered Spouse
A battered spouse must firstly be put into deportation (or "removal" under the new law) proceedings. She must demonstrate three years of continuous physical presence in the United States, instead of ten years as applicable to other individuals. Time toward the three-year period would accrue even after she received the notice to appear for the removal hearing. This is different than the one that applies to other individuals where physical presence in the United States terminates upon service of notice or commission of a criminal act.
The applicant for cancellation must demonstrate good moral character and must not be inadmissible under:
1. Section 212(a)(2) - criminal and related grounds
2. Section 212(a)(3) - security and related grounds
3. Section 237(a)(1)(G) - marriage fraud
4. Section 237(a)(2) - criminal offenses
5. Section 237(a)(3) - document fraud
6. Section 237(a)(4) - security and related grounds
The applicant, furthermore, must not have been convicted of an aggravated felony.
Most difficult is the requirement that the applicant demonstrate that removal would result in extreme hardship. While the battered spouse or child has to demonstrate "extreme hardship", others need to show "extreme and unusual hardship." Unlike in the cancellation of removal for other individuals who have to show "extreme and unusual hardship" to a citizen or resident relative, extreme hardship alone to the battered applicant would suffice.
Suspension of Deportation
Any deportation proceedings commenced on or after April 1, 1997 are removal proceedings rather than deportation or exclusion proceedings.
However, persons who were placed in deportation proceedings prior to April 1, 1997 as well as NACARA applicants may still be eligible for suspension of deportation. The “seven year law” is more generous than Cancellation of Removal.
A deportable alien may apply for permanent residence through suspension of deportation if he is able to fulfill the following 3 conditions:
1. He must have been continuously physically present in the U.S. for at least seven years. Absences, which are “brief, casual and innocent”, do not interrupt the continuity of the alien's physical presence.
2. He must be a person of good moral character.
3. It must be an extreme hardship upon the alien, or his spouse, children or parents who are citizens or residents of the United States if he were deported.
Adjustment of Status
A deportable alien who is the parent, spouse, widow or child of a U.S. citizen may be eligible to apply to the Judge to adjust his status to that of a lawful permanent resident (Green Card). Also qualified to apply for adjustment of status are many aliens whose priority dates for permanent residence are "current". Aliens who obtained conditional permanent residence based upon their marriage, or the marriage of their alien parent, to a U.S. citizen who were unable to have their status adjusted from Conditional (temporary) resident to Permanent Resident may, once INS places them under deportation proceedings, have their application renewed before an Immigration Judge
Asylum and Withholding of Deportation
Those who have a well-founded fear of persecution if they return to their home country may apply for asylum if their fear is based on any of the following grounds:
1. Political opinion
2. Religious belief
5. Membership in a particular social group
If a person is granted asylum, after one year they may apply for permanent resident status.
Withholding of deportation is similar to asylum. However, it differs in 2 important respects: (1) It does not permit the alien to apply for permanent residence, and (2) it only prohibits the INS from deporting the alien to one particular country.
Legalization and Amnesty
Once an illegal alien has been found qualified for legalization or "amnesty" by the INS, the deportation hearing will typically be closed since the alien will have attained the legal right to remain in the United States. Those who have filed for LULAC or Meese (Late Amnesty) may have their cases terminated.
Registry is another means of attaining lawful permanent residence in the United States. It is available to aliens who have resided continuously in the U.S. since prior to January 1, 1972, who are persons of good moral character, who are not deportable on certain aggravated grounds, and who are not ineligible to citizenship. This is very similar to Amnesty and still is available to this day.
Anyone that has fulfilled the requirements for naturalization may request that the case be either terminated or held in abeyance pending the results of the citizenship application.
In most case, if there is no special relief available that would stop the deportation, the alien may apply for Voluntary Departure. Once it is granted the alien will have 4 months to leave the United States. During this time they can get their life in order and prepare for their departure. Voluntary Departure avoids both the problems associated with a deportation and enable to enable the alien, in many cases, to eventually return to the U.S.
Voluntary departure is available to aliens who are not deportable on aggravated grounds, who have the ability to pay for their own airplane tickets, who agree to depart within a period of time granted by the Immigration Judge, and who can establish good moral character during the previous five-year period. The IIRIRA limited voluntary departure in several important ways. Extensions of voluntary departure are no longer possible. Nor may an alien granted voluntary departure obtain work authorization. This limits the usefulness of voluntary departure.
Understand that every application for relief from deportation is decided at the discretion of the Immigration Judge, except for Withholding of Deportation. A final order of an Immigration Judge may be appealed to the Board of Immigration Appeals, and in some cases to the appropriate U.S. Court of Appeals.
Moses Apsan is the author of the web site DeportationDefense.com.