Navigating Removal Defense in Immigration Law

Learn about removal defense. KC Immigration Lawyers have a detailed guide on effective legal strategies and guidance to protect your rights. Call now for help.

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What Is a Removal Defense?

Removal defense is the process of challenging the deportation of an immigrant from the United States. Every year, tens of thousands of immigrants are sent back to their home countries, including lawful permanent residents.

In fiscal year 2022, the U.S. Immigration and Customs Enforcement (ICE) conducted over 72 thousand deportations, more than half of which were based on criminal history.

If you are concerned about your immigration status or are facing immigration proceedings, an experienced immigration attorney from KC Immigration Lawyers can help. We can help you navigate the complex immigration laws in Missouri and throughout the U.S.

Common Grounds for Removal

The grounds for deportability or removal are outlined in section 237(a) of the Immigration and Nationality Act (INA). By grounds of deportability, we mean the reasons that warrant immigration authorities to detain and deport immigrants.

Here are the common grounds for removal:

  • Violation of status: A visa provides an individual with authorization to enter, travel through, or reside in a country for a specific time or purpose. Individuals who overstay their visa or violate the terms of their visa can be subject to removal.
  • Criminal convictions: Certain criminal convictions can affect your immigration status and lead to deportation. This includes aggravated felonies or crimes of moral turpitude, which are broadly defined by the courts as crimes that are considered morally reprehensible. Other convictions that can lead to removal include drug offenses, violent crimes, and crimes involving domestic violence.
  • National security concerns: Individuals who pose a threat to national security can face deportation, especially if they are involved with terrorists or engaged in espionage activities.
  • Public charge: A public charge is a person who is primarily dependent on the government’s support for sustenance. Permanent residents who become a public charge within the first five years of entry into the U.S. can be deported. Immigrants applying for a visa or adjustment of status who are believed to become a public charge are deemed inadmissible.
  • Unlawful entry: Individuals who enter the U.S. without admission can be placed in removal proceedings.
  • Document fraud: Using fraudulent documents or providing fraudulent information can lead to deportation. You can also be deported when you engage in identity theft to get immigration benefits.

Reversal of Removal

Reversal of removal or cancellation of removal is a form of relief from deportation under INA §240A. Qualifying non-citizens for a reversal of removal can avoid deportation and obtain a lawful status.

Eligibility Criteria for Reversal of Removal

Cancellation of removal is available for two categories of residents: lawful permanent residents (LPRs) and non-lawful permanent residents. Each category has its own requirements for obtaining a lawful permanent resident status.

Reversal of Removal for Lawful Permanent Residents:

LPRs, also known as green card holders, may be eligible for cancellation or removal if they meet the following criteria:

  • Have been an LPR for at least five years

  • Have resided in the U.S. continuously for seven years after being lawfully admitted in any status

  • Have not been charged with an aggravated felony

Reversal of Removal for Non-Lawful Permanent Residents:

Non-lawful permanent residents may be eligible for cancellation of removal if they meet the following criteria:

  • Have been physically present in the U.S. for a continuous period of at least ten years

  • Have demonstrated good moral character during this period

  • Have not been convicted of any crime under INA §212(a)(2), §237(a)(2), and §237(a)(3).

  • Can establish that their removal would result in an exceptionally unusual hardship to a U.S. citizen or legal permanent resident child, spouse, or parent.

Other Deportation Defense Options

Various other forms of relief are available to individuals facing removal, including:

  • Withholding of removal is available for those fearing persecution in their home country. This can be due to their race, religion, nationality, political affiliation, etc. Asylum may also be granted for fear of retribution due to political opinion or membership in a particular social group.

  • Adjustment of status for those with qualifying family relationships or employment offers and an approved immigrant visa petition.

  • Waivers for specific immigration violations to attain legal permanent residency.

  • Protection under the Convention Against Torture (CAT) for those at risk of torture if deported.

  • Temporary protected status (TPS) for individuals from certain countries experiencing armed conflict, natural disasters, or other conditions that make returning unsafe.

The Removal Process

Removal proceedings are a complex, multi-stage process that individuals facing deportation must navigate. These proceedings will likely include the following steps:

Step 1: Receipt of Notice to Appear

The removal process begins when an individual receives a notice to appear (NTA) from the Department of Homeland Security (DHS). One may also receive an NTA from agencies under the DHS, like ICE, and may be held in immigration detention while waiting for their hearings.

Step 2: Master Calendar Hearing

The immigrant is due for a master calendar hearing at the immigration court. The NTA must be served at least ten days prior to the date of this hearing. An immigration judge will review the charges, inform the immigrant of their rights, and schedule future hearings.

Step 3: Individual Calendar Hearing

At the individual calendar hearing, you and your attorney will present your argument for relief. You will raise your defense and make the case for why you should be allowed to remain in the U.S. For example, an individual seeking asylum may present their credible fear interview results. They can also present supporting documentation to establish eligibility for protection.

The government attorney, the opposing party in the proceedings, will also present their case for removal at this hearing.

Step 4: Appeals Options

If an order for removal is entered, you can appeal the decision of the judge to the Board of Immigration Appeals (BIA).

How Can an Attorney Help You With Your Removal Defense?

Legal assistance from an immigration lawyer is crucial during removal proceedings. Here’s how our Kansas City immigration lawyers can help you during deportation proceedings:

  • Our attorneys can assess your case and determine appropriate defense or relief options, including prosecutorial discretion, deferred action, inadmissibility waivers, TPS, asylum, and withholding of removal.
  • We can provide legal representation during immigration court proceedings.
  • We can represent you in bond hearings to advocate for release from immigration detention.
  • Our team can help you file the required forms and documents to adjust or obtain legal status. This includes Form I-751 to remove the conditions on a conditional permanent resident, Form I-485 to adjust status, and Form I-918 to obtain U visa status as a victim of criminal activity.

Contact Us Today at KC Immigration Lawyers

Hiring a skilled immigration lawyer to handle your removal defense can significantly increase your chances of success. Immigration attorneys at KC Immigration Lawyers have the knowledge and experience you need. Wherever you are in the U.S., we can help you.

Contact us today for a free consultation.