Immigration Services - Butvilas & Associates PC
Removal (formerly Deportation) Defense is an area of Immigration Law which concentrates on defending a person from being removed from the United States. The experienced removal defense lawyers at Butvilas & Associates P.C. are dedicated to providing high-quality removal defense before USCIS, the Immigration Court, the Board of Immigration Appeals, the Federal District Courts, and the Federal Courts of Appeals.
Our goal is to keep you in the United States. There are various forms of relief that are available to those that the U.S. government seeks to keep out of the United States. To avoid removal various defenses are listed below. There is no certain way to know for sure which defense would be good for your case but an experienced attorney can tell you how you can remain in the United States.
Defenses to Removal of an Undocumented Alien
- Adjustment of status, most likely under Immigration and Nationality Act (I.N.A.) Section 245 or 245(i). This is a way of changing from nonimmigrant to immigrant status in order to get legal status in the United States. Usually (among other requirements) you have to have entered the U.S. legally to qualify for adjustment. But some exceptions to the legal-entry requirement are available.
- Adjustment of status through “registry” under I.N.A. Section 249. This is a way of getting a green card if you entered the U.S. before January 1, 1972 and meet other requirements, which include residence in the U.S. since that date, “admissibility,” and “good moral character.”
- Asylum. This is a form of protection for people who have fled persecution or fear future persecution in their home country, which allows legal status in the U.S., a work permit, and eventually a green card.
- Withholding of removal. Like asylum in many ways, withholding is more difficult to obtain, because you have to show that it is “more likely than not” that you would be persecuted in your home country upon return. Also, it provides fewer benefits than asylum, because recipients are usually ineligible to apply for permanent residence or travel outside of the United States. However, a person who gets withholding can stay in the U.S. and can get work authorization.
- Protection under the Convention Against Torture (CAT). Protection under CAT is available only if it is “more likely than not” that your home country’s government — or some person or group the government cannot control — will torture you if you have to return their. But it does not matter why you would be tortured; the fact that it is likely that you would be tortured would be enough. CAT is also like withholding in that persons who receive CAT protection cannot ever get permanent residence or travel internationally. But CAT recipients do usually receive permission to remain and work in the United States.
- Cancellation of removal for persons who are not lawful permanent residents. This is a way of obtaining a green card if you can prove ten years’ physical presence in the U.S., and can also show that your being removed would cause “exceptional and extremely unusual hardship” to your “qualifying relative” (a spouse, parent, or child who is a U.S. citizen or permanent resident).
- Cancellation under the Violence Against Women Act (VAWA). Similar to cancellation of removal for non-permanent residents, the applicant for VAWA cancellation must show that he or she has been “battered or subjected to extreme cruelty” by a “qualifying relative” and meets other requirements, including three years of physical presence in the U.S. and good moral character.
- NACARA special rule cancellation. Available only if you meet very specific requirements, including being from one of a list of particular countries. Some applicants for this type of relief also have to show that they applied for asylum before a certain date or that they are eligible to apply to reopen past removal proceedings under the “LIFE Act.”
- Voluntary Departure. If all else fails, this offers way to leave the U.S. without staining your immigration record with a past order of removal (which can make returning to the U.S. even harder).
- Deferred action. This is an agreement by the U.S. government to put your case on hold (neither give you legal status nor deport you). It is applied on a case-by-case, except that procedures have been formalized for certain young immigrants.
- Prosecutorial discretion. This is a decision by the government agency that is trying to deport you to stop trying to do so. If you receive prosecutorial discretion, you will probably qualify for work authorization. But you will probably NOT be eligible for other benefits such as the right to travel. Usually, persons whose cases are closed based on prosecutorial discretion do not have a criminal record, but there are no set-in-stone rules about who can receive this benefit.
- Private bills. Laws passed by the U.S. Congress can help an immigrant receive relief from deportation. This occurs very rarely and only if there are highly sympathetic facts. Private bills are usually an option only if no other forms of relief are available.
Defenses to Removal of a Green Card Holder
If you are a lawful permanent resident (LPR or green card holder) and find yourself in removal proceedings because of a criminal conviction, you may be eligible for cancellation of removal for lawful permanent residents.
Once your attorney (and the Immigration Judge) determine that you meet the basic eligibility criteria to apply for cancellation of removal for lawful permanent residents, you have to actually apply and present your case before the Immigration Court. The Immigration Judge will determine whether or not you will retain your green card or be issued an Order of Removal.
Take the next step and get a free case evaluation to see if you can qualify for removal defense.