Asylum, Suspension of Removal (Deportation), Waivers, Prosecutorial Discretion, Administrative Closure.
A non-citizen who is present in the United States is potentially subject to removal or deportation. A person here illegally, or even with a valid visa or green card, can be removed or deported. If you have been removed or deported, you cannot gain legal re-entry into the United States for at least five years, possibly more. It is likewise a felony if you re-enter before the end of the five years. You must also receive permission from the Bureau of Citizenship and Immigration Services (BCIS) before you re-enter.
Effective deportation defense is obtained by filing applications for relief. Relief can take many forms, from asking the Immigration Judge to terminate proceedings to applying for some way to adjust status to Permanent Lawful Residency. The most common forms of relief from deportation are Asylum, Suspension of Removal (Deportation), Prosecutorial Discretion, and Administrative Closure of your case. There are other forms of relief but they require a case by case analysis.
Asylum, not just political anymore.
A person seeking Asylum must show that he or she has been persecuted or fears future persecution in the home country because of:
? Political belief or opinion;
? Membership in a certain social group.
There are other grounds for Asylum that have been developed through jurisprudence from the Board of Immigration Appeals (BIA) and Federal Courts. Battered spouses and children, victims of violent crimes, and victims of human trafficking are new areas of asylum law that could benefit a non-immigrant facing deportation. Additionally, if the applicant is granted asylum, his/her spouse and children can benefit from this relief even if they are abroad.
However, there are limitations to apply for Asylum. The application must be filed within a year of arrival in the US, and there are severe penalties for filing a frivolous asylum application. You should always contact an experienced immigration lawyer if you are considering applying for Asylum.
Suspension of Removal (Deportation).
This form of relief from deportation is a misnomer since the deportation is not only suspended but if relief is granted it can lead to Lawful Permanent Residency (LPR).
To obtain Suspension of Removal a deportable alien must meet the following criteria:
? The alien must be continuously and physically present in the United States for at least seven years. In some cases the time period can be as long as ten years.
? The alien must be of good moral character.
? The alien must show that if deported, this would cause extreme hardship on an immediate family member who is either a U.S. citizen or a Lawful Permanent Resident (LPR). Of all the requirements, this is the most difficult to prove, since it is the most subjective. An experienced Immigration lawyer would look for all the factors that tend to show extreme hardship. Payment of taxes, absence of criminal record, and contribution to the community are usually very helpful in obtaining a favorable decision.
The most common waivers for criminal grounds of deportability are 212(h) and 212(c) The common denominators are a qualifying relative and hardship.
212(h) A waiver that allows you to get legal status through a family member even though you have certain criminal convictions. It can waive grounds of removability based on the following crimes:
Crimes of moral turpitude;
Multiple criminal convictions;
Possession of 30 grams or less of marijuana.
212(c) In order to be eligible, a lawful permanent resident who is currently in deportation proceedings for a criminal conviction must establish that: (1) he has lived in the United States consecutively for at least seven years; (2) he was convicted after pleading guilty to his offense prior to 1996, and not after trial; (3) the balance of favorable considerations weigh in his favor and outweigh the unfavorable factors; and ) he has been convicted of an offense for which 212 (c) relief is available.
Administrative Closure and Prosecutorial Discretion.
On June 17th, 2011 The Department of Homeland Security (DHS) through John Morton, Director of the U.S. Immigration and Customs Enforcement (ICE) issued a memorandum clarifying when their officers, including Department attorneys, could exercise prosecutorial discretion and close cases pending before an Immigration Judge. The factors were listed in the Memorandum.
Similar in many ways to Prosecutorial Discretion, Administrative Closure is a procedural mechanism to temporarily suspend removal proceedings by removing the case from the immigration judge's or BIA's calendar. The case is administratively closed to allow an event outside the control of the parties to occur, even if the event does not take place for many years. Contrary to Prosecutorial Discretion, though, while the case is closed temporarily, Administrative Closure does not permanently terminate the case nor eliminate the existing Notice to Appear (NTA).
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