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Removal Defenses

If you or a loved one has an upcoming immigration court date, you need an experienced and committed attorney on your side to defend YOU against deportation.  There are a number of defenses against deportation, all of which require the filing of an application in Immigration Court, the payment of filing fees, and the submission of extensive documentation to support the application.  Contact Aretz & Chisholm Immigration today to discuss your options with an immigration attorney who is committed to defending your case against deportation.

The following are the most common defenses in Immigration Court:

Cancellation of Removal

Ten-year Cancellation” provides you a path to lawful permanent resident status (a green card) if you can show that you have been continuously present in the U.S. for at least 10 years and that you have a U.S. citizen or LPR relative who would suffer “exceptional and extremely unusual hardship” if you were deported.

Seven-year Cancellation” or “LPR cancellation” gives a second chance to some lawful permanent residents who are facing deportation due to criminal convictions, to apply for permanent residency and cancellation of their removal.

Violence Against Women Act (VAWA) allows immigrant victims of domestic violence to apply for permanent residency and cancellation of their removal.

Adjustment of Status

If you have a U.S. citizen or LPR family member who wants to petition for you, then you may be eligible to apply for your permanent residency (green card) in immigration court.  The family member must be a spouse, child, parent, or in some circumstances a brother or sister.  Even if your adjustment application has been denied by USCIS, an immigration judge can review it again and has the power to approve it.  See the section on adjustment of status to learn more about this process.

Victims of domestic violence may be eligible to apply for adjustment of status under the Violence Against Women Act (VAWA) if they were abused by a U.S. citizen or permanent resident spouse or parent.

Asylum/Withholding of Removal/Convention Against Torture 

U.S. Immigration law provides options to those who are fighting their deportation case and fear returning to their home country.  There are three general options available to you if you have been harmed in the past or if you fear being harmed in the future.

If you have suffered persecution in your home country, or if you are afraid of being persecuted in the future if you are forced to return to your home country, then you may be eligible for Asylum.  It is not enough to have a fear of general violence.  You must be able to prove that the persecution you fear is being done to you because of your race, religion, nationality, political opinion, or membership in a particular group.  Furthermore, you must apply for asylum within one year of arriving to the U.S. (certain exceptions apply).  Those convicted of an aggravated felony, those who pose a national security threat, and those who have been denied asylum previously by an immigration judge are all ineligible to apply for asylum.

Withholding of Removal, as opposed to asylum, is a nondiscretionary form of relief.  To be granted Withholding, you must show that it is “more likely than not” that you will face persecution if removed to your home country (a higher standard than for asylum).  There are fewer bars to withholding of removal than to asylum, including no requirement to file within one year of arrival to the United States.  Unlike asylum, a grant of withholding does not result in permanent resident status or the ability to apply for permanent resident status. A grantee may, however, receive work authorization.

The Convention against Torture (CAT), to which the U.S. is a party, prohibits the government from deporting anyone to a home country in which it is more likely than not that the individual will suffer torture at the hands of the government or at the hands of third parties that the government is unwilling or unable to control. There are no bars to deferral of removal under the Torture Convention.

For more information on asylum and other persecution-related forms of relief from removal see the section on Asylum.

U-Visa

If you have been the victim of a serious crime inside the United States, and you have cooperated with law enforcement in the investigation or prosecution of the crime, then you may be eligible for a u-visa.  You must also be able to show that you suffered substantial physical and/or emotional harm as a result of the criminal activity.  Note that it is irrelevant whether the perpetrator of the crime has legal immigration status in the United States.

For more information on the U-Visa as a form of relief from removal, visit the U-Visa page.

Special Rule Cancellation under NACARA

The Nicaraguan Adjustment and Central American Relief Act (NACARA) of 1997 provides a variety of immigration benefits and relief from removal to certain people and their dependants from Guatemala and El Salvador who came to the United States for asylum prior to 1990.  NACARA also provides various forms of immigration benefits and relief to certain Nicaraguans, Cubans, nationals of former Soviet bloc countries and their dependents. In 2000, the Victims of Trafficking and Violence Protection Act added more categories of protection under NACARA.

Temporary Protected Status

Temporary Protected Status (TPS) is a temporary immigration status granted to eligible nationals of designated countries who cannot return home because of a crisis in their home country or national disaster. This relief from removal is invoked by the President or Attorney General and is often granted when civil wars break out, or hurricanes strike. In order to be eligible for TPS an applicant must (1) apply for TPS during the specified registration period; (2) demonstrate that you have been continuously present in the U.S. since the TPS designation began and since a date specified by the Attorney General; and (3) you have not been convicted of any felony or two or more misdemeanors in the U.S. and (4) are not inadmissible on other grounds.

Voluntary Departure

This is not really a defense against deportation, but instead it is an alternative to deportation.  If you have no way to fight your case, or if you have applied for relief from removal (one of the preceding defenses) but you have lost your case, then you may still be eligible to request voluntary departure in lieu of deportation from the immigration judge.  IN order to be granted voluntary departure (VD) you must agree to not fight your case any further, to pay for your own trip home, and to depart the U.S. within a certain time period.  Receiving a grant of voluntary departure may make it easier for you to return to the United States legally in the future.  Please consult with an immigration attorney to determine if you are eligible for voluntary departure and whether it’s to your advantage to request VD in lieu of deportation.

Immigration court is an intimidating and confusing place.  Therefore, it is important to hire an immigration lawyer who you feel comfortable with to guide you through this process.  Attorneys Grace Chisholm and Stephanie Aretz will be honest and realistic with you about your options, and will work with you to achieve the best possible result in your case.

Contact Aretz & Chisholm Immigration today to schedule a consultation regarding your immigration case.

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