Published July 25, 2017
Foreign nationals in the U.S. may find themselves defending against removal proceedings because they overstayed or somehow violated the terms of their temporary visa status. Or they may never have had immigration status in the first place. Or, it might be that they have permanent resident status, but committed a criminal act that prompted their “removability”. Whatever is the case, if a foreign national finds themselves having to defend against removal proceedings, it is imperative that they know which options may be available to allow them to remain in the U.S. Below are the most common defenses or strategies employed by foreign nationals in defense of removal proceedings, although this list is far from being exhaustive.
1. Cancellation of Removal
In general, a non-citizen 1) with an immediate family member who is a U.S. citizen or lawful permanent resident and 2) with more than 7 years residence in the U.S. (for lawful permanent residents) OR 10 years of residence (for those without resident lawful status) – MAY have available the defense of “Cancellation of Removal” – that is as long as whatever criminal activity (if any) the applicant may have been involved in does not establish a ground of legal ineligibility. Also, for non-permanent residents, they must demonstrate that their forced departure will cause an exceptional and extremely unusual hardship for a U.S. citizen or lawful permanent resident parent, spouse or child. A grant of cancellation of removal leads to approval or reinstatement of lawful permanent residence status (green card).
2. Adjustment of Status
The foreign national may have a qualifying relationship to allow them to request that the immigration court – in defense of removal proceedings, approve an application to adjust their status to permanent residence. Most often that relationship will be by way of marriage to a U.S. citizen or a permanent resident who will soon become a U.S. citizen. Of course other familial relationships may create an avenue to adjust status, as long as a previous visa petition has been approved on their behalf and they otherwise meet all other applicable requirements.
3. Asylum/Withholding of Removal
If a foreign national fears return to their home country because of persecution they may face on account of their race, religion, political belief or social group a defense of asylum or withholding of removal may be available. If granted asylum the foreign national will eventually be eligible to apply for permanent residence. A grant of withholding of removal allows the foreign national to remain in the U.S. indefinitely, and with eligibility to renew their employment authorization each year.
4. Vacate Criminal Offense
Sometimes the root of the foreign national’s immigration problem and obstacle to removal defense is a criminal conviction entered after the foreign national took a guilty plea – and without being properly advised of immigration consequences. If a case of ineffective assistance of criminal counsel can be proven (because the criminal defense attorney failed to provide complete advice), then a foreign national may be eligible to have their conviction vacated. As a result, they might be in a position to seek termination of removal proceedings or at least be eligible to apply for relief from removal now that a disqualifying criminal conviction is no longer a factor. Such a project starts with finding a seasoned criminal attorney with the right experience, who will work in conjunction with an immigration lawyer, to attempt to reverse such a conviction.
5. Prosecutorial Discretion
Sometimes the foreign national has no legal defense to removal proceedings, mainly because they lack the requisite number of years of residence to qualify for one of the above avenues, or due to some other shortcoming. Although less popular these days in our current immigration enforcement environment, the foreign national can always request that the Department of Homeland Security exercise discretion and not pursue their removal because of some compelling hardship and that the foreign national has an otherwise clean record. Those include hardships arising out of U.S. family ties, medical complications and/or conditions in the foreign national’s home country. Of course, there may be other factors at play to establish a basis to seek prosecutorial discretion.
Lastly, in responding to removal proceedings, a foreign national should retain legal counsel that is experienced in removal defense and has a reputation for being honest and successful in providing such representation.
PUBLISHED July 25, 2017– “IMMIGRATION LAW FORUM” Copyright © 2017, By Law Offices of Richard Hanus, Chicago, Illinois