Individuals who come to the United States illegally, who violate the terms and conditions of a legally granted visa, who remain in the United States beyond the expiration of a legally obtained non-immigrant visa, or who commit criminal offenses, may be subject to removal, or deportation. An immigration attorney will handle not only visa application and immigration processes, but also provide legal services pertaining to detention, deportation, and removal proceedings.
If you face detention, deportation, and removal proceedings, you will need to hire a qualified immigration attorney to avoid the very real possibility of deportation or removal. Non- US citizens can face detention and deportation for violating US immigration laws. One way to violate immigration laws is to be convicted of serious criminal offenses, specifically aggravating felonies and crimes of “moral turpitude.” If can be difficult to determine what crimes apply to the latter category, and those qualifying crimes can vary based on jurisdiction. That is why if you are arrested for a crime, or you under investigation and believe you may be charged, you need to secure the services of a dedicated immigration attorney immediately. They will be able to determine whether that plea deal that your criminal defense attorney negotiated in good faith could have serious unintended consequences. While it may seem on the surface that your best option is to plead guilty in order to secure limited jail time and other reduced penalties, that guilty plea could result in your deportation once your jail or prison term is served.
Cancellation of removal is a fairly complicated process. The immigration judge has discretion when deciding whether to grant cancellation of removal which is why the process is similar to a criminal trial where you really have to argue the equities of the case. Because of the highly discretionary nature, it is very important to hire an attorney to defende you on a cancellation of removal case.
Cancellation of Removal Defense
Cancellation of removal is a type of defense from deportation only available to individuals who are in removal proceedings. When a person is in removal proceedings, this means that the Department of Homeland Security is trying to deport them. For many people, not only is cancellation a way to protect themselves from deportation, but it is also their only option. If cancellation of removal is granted, these individuals can then attempt to legalize their stay.
This benefit is not available to individuals whose case is not before an immigration judge. Due to the discretion involved on the part of the judge, it is very important to consult with an immigration attorney to learn more about the process.
Authority to Grant Cancellation of Removal
For cancellation of removal, a person must appear before an immigration judge. Only an immigration judge has authority to grant this application. This is not a standard application where you just have to submit documentation to United States Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE) or another Department of Homeland Security Agency.
This form of relief can only be granted by an immigration judge. During the initial application process, you will appear before an immigration judge at the Executive Office for Immigration Review (EOIR), or if you appeal a decision made by an EOIR judge than a Board of Immigration Appeals (BIA) judge or a federal circuit judge can grant your cancellation of removal.
Top Three Things to Know About Cancellation of Removal
#1 You Do Not Qualify for Cancellation of Removal Unless You Are in Removal Proceedings
The most common misconception regarding cancellation of removal is that people think they are qualified for this relief even if they are not in removal proceedings. However, this is not the case. This relief is known as cancellation of removal, because you are trying to cancel a process that has already begun. Thus, for you to be eligible, you must be in removal proceedings.
#2 Not Everyone is Eligible for Cancellation of Removal
Another important issue to understand is that not everyone is eligible for cancellation of removal, even if they meet the basic statutory requirements. You can apply for cancellation of removal as either a legal permanent resident (green card holder) or a non-legal permanent resident; however, the process is more complicated for non-legal permanent residents.
If you are currently not a legal permanent resident, you need to prove that you have a qualifying family member who will suffer extreme and unusual hardship if you are removed from the United States. Immigration law defines a qualifying family member as a spouse, child, or parent who is a US citizen or legal permanent resident.
Determining what is considered extreme and unusual hardship is a discretionary decision. Unfortunately there is no predetermined list that a person can check off to confirm that they qualify. The person will need to convince the judge that their hardship is extreme and unusual, which is a high standard to meet. Fortunately for legal permanent residents, this requirement does not exist, so qualifying is more straightforward.
#3 Cancellation of Removal is a Long and Difficult Process
Finally, those considering cancellation of removal should be aware that regardless of whether you are a legal permanent resident, cancellation of removal is a long and arduous process. Currently, there is a huge backlog in the immigration courts, thus it may take a significant amount of time for an “individual hearing” or a trial to be scheduled.
When you are eligible for cancellation in removal proceedings, you will have to attend an initial hearing, submit all your paper applications to the court and be fingerprinted. Then, you will be scheduled for an actual trial which may not occur for a few years.
If you have been detained by US Immigration Customs Enforcement (ICE) and are awaiting a decision regarding your deportation, or if you are facing the possibility of removal proceedings, contact an immigration attorney immediately to provide necessary legal representation.
“Born in other countries, yet believing you could be happy in this, our laws acknowledge, as they should do, your right to join us in society, conforming, as I doubt not you will do, to our established rules. That these rules shall be as equal as prudential considerations will admit, will certainly be the aim of our legislatures, general and particular.”
Removal and Deportation
Reggie Smith Law