When a foreign national finds him or herself in a deportation (removal) proceeding, all hope is not lost. There are a variety of legal remedies that can prevent an individual’s deportation. Below is a brief summary of various forms of relief from removal:
Immigration Services General Information:
Adjustment Of Status/Consular Processing:
When applying for both immigrant and non-immigrant visas for entry into the United States, there are two steps that intending migrants must complete to receive their visa at the end of the process.
First, you or your company must submit a Visa application or petition either to the U.S. Citizenship and Immigration Services (USCIS), or to the U.S. Department of State (DOS), depending on the visa category.
Second, once approved, you must then either “change status (for a non-immigrant visa) or “adjust status” (for an immigrant visa) if you are already in the United States under a different visa category. Or, if you are residing outside the U.S., you must “consular process” to receive either category of visa at a U.S. Consulate abroad (a process overseen by DOS).
Regardless of your visa category, or your location at the time of visa approval, processing for a visa can be a complex and confusing process. From the beginning, it is important to chart out the sequencing of required actions, and choreograph each step to be followed, to ensure there are no mistakes or oversights that could lead to your visa being denied.
These planning measures are also necessary to ensure timeliness and predictability in a process that could otherwise be slow and confusing. GMLG specializes in working with you and your key relationships (your business colleagues or family) to guide you through this process in a clear and convenient manner. We pride ourselves on giving you individualized attention.
Finally, if you are already at some stage in the visa process and have run into trouble, GMLG can help you to get information on your case and plot a path forward to achieve a workable resolution. Very often intending migrants can go months or even years without getting clarity on the status of their case.
Concierge Migration Service:
GMLG’s approach to the delivery of global migration legal services emphasizes personal attention and responsiveness. If you are guided by a need to find the cheapest law firm in the marketplace or are content to accept the high-volume, one-size-fits-all visa processing solutions offered by our “brand-name” competitors, then we are not your law firm.
Our approach, while a little costlier, permits us to provide companies, their senior executives and management personnel, as well as our high net-worth clients the individualized attention they command and deserve. GMLG’s Concierge Migration Service or “CMS” is the hallmark of our visa offerings. It comes with a guarantee of high quality service, attention to detail and an unfailing willingness to be responsive to you, your questions and concerns.
If you are a corporate client, we structure the CMS relationship to engage you earlier, more frequently, and on a strategic basis; helping you to plan and execute your migration process in a way that anticipates everything from initial population of start-up locations in new countries of operation -- to the scaling up (or down) of operations in an established country – to anticipating the seasonal or situational nature of your staffing needs -- to emergency relocation services in the event you have to move your people on very short notice, or under the most emergent circumstances.
If you are an individual client, we structure the CMS relationship to be respectful of your time and other pressing matters – we are responsive to your concerns and questions and never look at our watches, because our time is your time -- we find customized solutions to the migration needs of you and your family – protecting your privacy is always uppermost in our minds. GMLG is not your typical “nine to five” migration law firm, because your needs do not arise only during the traditional workday. We provide U.S. and Indian-based immigration advice (and global migration counseling through our affiliates worldwide) whenever you need it.
Cancellation Of Removal:
When foreign nationals are placed in removal (deportation) proceedings, they may be eligible to prevent their deportation through Cancellation of Removal. Cancellation of Removal is available to lawful permanent residents who are deportable for certain criminal convictions and to individuals with no lawful status who have been living in the United States a minimum of 10 years; have no criminal record and can show exceptional and extremely unusual hardship to his or her U.S. citizen or resident spouse, parent or minor child. A grant of Cancellation of Removal for individuals who do not have legal status results in the issuance their green card.
Appeals To The BIA & U.S. Circuit Court Of Appeals:
In the event that the immigration judge denies an applicant’s application for relief from removal, a foreign national has the right to file an appeal of the denial of his or her case within 30 days of the date of the decision. Appeals of decisions of immigration judges are first presented to the Board of Immigration Appeals (BIA), an administrative appellate body located in Falls Church, Virginia. The Board of Immigration Appeals may overturn the decision of an immigration judge or affirm the judge’s decision. If the Board of Immigration Appeals agrees with the immigration judge’s denial, the decision of the Board of Immigration Appeals may be appealed to the U.S. Circuit Court of Appeals having jurisdiction over the applicant’s case. Our team has experienced appellate attorneys who can ensure that a foreign national has full access to due process and the appellate process. We have attorneys with excellent research and writing skills able to write the best possible legal arguments on behalf of our clients.
Waivers are filed to waive certain grounds of inadmissibility which take effect when an individual is applying for residency or admission into the United States. The most common grounds of inadmissibility include the following: criminal convictions, fraud and misrepresentation to immigration officials, and unlawful presence in the U.S.
In general, to be granted a waiver, the foreign national must demonstrate to the immigration judge that his or her U.S. citizen or Lawful Permanent Resident spouse, parent, or in some cases minor child will suffer “Extreme Hardship.” Extreme Hardship does not have an exact definition but it is described as hardship not normally associated with the deportation of a loved one. Simple financial loss from losing the deported individual’s salary or sadness stemming from the deportation of someone you love is not sufficient to prove extreme hardship.
A person must show hardship above and beyond the hardship baseline. A hardship waiver must also address the hardship for the U.S. citizen or resident relative both if the relative remained in the United States without the applicant or if the U.S. relative returned with the applicant to his or her native country. Every individual who is required to file a waiver needs the help of a qualified immigration attorney who can assist in preparing and document the hardship.
Motions To Reopen:
A motion to reopen an unfavorable decision of the immigration judge must be filed within 90 days of the immigration judge’s order. A motion to reopen must contain new facts, previously unavailable, that would substantially change the outcome of the case. Outside of the 90-day filing window, a Motion to Reopen can be granted under the following circumstances:
- The foreign national demonstrates that she was so prejudiced by the ineffective representation of her prior attorney that reopening is merited.
- Conditions in her home country have substantially changed as to effect eligibility for relief from removal.
- Foreign national did not have proper notice of the removal hearing.
- The government joins the foreign national in requesting reopening.
Our team has successfully reopened countless orders of deportation on behalf of foreign nationals.
There are two ways of obtaining asylum in the United States, an affirmative filing through an asylum office and a defensive filing in removal proceedings. Our team has experience in both the affirmative and defensive asylum processes and has successfully represented many individuals seeking asylum in the U.S. It is very important to note that generally an applicant must file for his or her asylum application within one (1) year of entering the U.S. to be eligible for asylee status, unless he or she falls within a narrow exception to the one-year filing deadline.
The process of filing for asylum requires applicants to provide detailed information regarding their past activities, associations, experiences of persecution, and current fear of future persecution should they be forced to return to their home countries. They must also provide information on conditions in their home country to support the accuracy of their claim. This information must be consistent with an applicant’s account of events and objectively support his/her fear of return. It is extremely important to have a qualified immigration attorney to assist in the preparing and filing of an asylum application to avoid any discrepancies and inconsistencies during the asylum process as an applicant's credible is often the most important factor in an asylum claim.
To be eligible for asylum in the United States, the applicant must demonstrate that he/she is a “refugee” as defined by INA §101(a)(42), which includes several elements, each of which has been defined in greater detail through regulations and case law:
- Applicant is outside of his country of nationality or, for those without a nationality, outside country last habitually resided.
- He/she is unable or unwilling to return to that country and unable or unwilling to avail self of protection of that country.
- Because of persecution or a well-founded fear of persecution experienced in the home country.
- On account of race, religion, nationality, membership in a particular social group, or political opinion.
Affirmative Asylum Processing With USCIS:
To obtain asylum through the affirmative asylum process you must be physically present in the United States. You may apply for asylum status regardless of how you arrived in the United States or your current immigration status.
You must apply for asylum within one year of the date of their last arrival in the United States, unless you can show:
- Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing.
- You filed within a reasonable amount of time given those circumstances.
If your case is not approved by the local asylum office and you do not have a legal immigration status, USCIS will issue a Notice to Appear and forward (or refer) your case to an Immigration Judge at the Executive Office for Immigration Review (EOIR). The Immigration Judge conducts a ‘de novo’ hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS regarding the individual's asylum claim.
Defensive Asylum Processing In Immigration Court:
A defensive application for asylum occurs when you request asylum as a defense against removal from the United States after the applicant has been placed in removal proceedings. Immigration Judges hear defensive asylum cases in adversarial (courtroom-like) proceedings. The judge will hear arguments from both of the parties (the applicant and his/her attorney and an attorney representing the government in the asylum claim). The Immigration Judge then decides whether the individual is eligible for asylum. If found eligible, the Immigration Judge will order asylum to be granted. If found ineligible for asylum, the Immigration Judge will determine whether the individual is eligible for any other forms of relief from removal. If found ineligible for other forms of relief, the Immigration Judge will order the individual to be removed from the United States. The Immigration Judge’s decision can be appealed by either party to the Board of Immigration Appeals.
Once granted asylum, an individual may apply to adjust status to lawful permanent resident after a minimum of one year in asylee status.
The U non-immigrant status (U visa) is set aside for victims of certain crimes in the United States who can demonstrate that he or she has suffered substantial mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. U visas are available to all foreign nationals including those who have entered the U.S. illegally. Qualifying criminal activity for a U visa includes the following:
- Domestic violence;
- Sexual assault;
- Abusive sexual contact;
- Sexual exploitation;
- Female genital mutilation;
- Being held hostage;
- Involuntary servitude;
- Slave trade;
- Unlawful criminal restraint/False imprisonment;
- Felonious assault;
- Witness tampering;
- Obstruction of Justice;
- Attempt, conspiracy, or solicitation to commit any of the above.
A grant of a U visa leads to lawful permanent resident status.
If a foreign national is taken into the custody of Immigration and Customs Enforcement (ICE) during the pendency of his or her removal proceedings, he or she may be eligible for release on bond. Many non-criminal and some criminal detainees will be eligible for release by posting an immigration bond. However, many criminal detainees are ineligible for release on bond and subject to "mandatory detention" during the pendency of his or her removal proceedings due to serious criminal convictions. Our office represents many individuals in filing Motions for Release on Bond and before immigration judges in bond proceedings and has successfully effectuate the release of many individuals from immigration detention facilities.
At the bond hearing, the judge will either set a bond amount or decide not to release the alien on bond. The minimum amount that can be set is $1,500.00, and most immigration range from $1,500.00 to $20,000.00; or in some extreme cases even higher.
Typically, immigrants who are not classified as arriving aliens or terrorists are allowed to seek for bond so long as they are not classified as aggravated felons under federal immigration guidelines. The judge will make the decision on whether or not to allow bond, based on the following factors:
- Whether the immigrant poses a danger to the community.
- Whether the immigrant is a flight risk due to the family ties to the United States.
- Whether the immigrant has a criminal history.
- Whether the immigrant has a history of stable employment.
- Whether the immigrant is able to pay the bond.
- Whether the immigrant has been involved in community organizations.
- The immigrant’s immigration history.
- Whether the immigrant is eligible for relief from removal or deportation proceedings in immigration court.
There are two types of bonds available to illegal aliens in ICE custody, (as long as the alien is not considered a threat to national security or public safety).
1. Delivery Bond
This bond is used to ensure that the detainee shows up to all immigration hearings. It allows the person to spend time with family, as well as consult with an immigration lawyer leading up to a court hearing.
2. Voluntary Departure Bond
In some cases, detainees are given the option to voluntarily leave the country at their own expense by a specified time period. The departure bond--if paid in full to ICE--is refundable once the person has left the country, but will be forfeited if the person fails to leave.
Temporary Protected Staus:
Temporary Protected Status or TPS is when the Secretary of Homeland Security designates a foreign country as too dangerous for its citizens in the United States to return. Any country which falls under the conditions below, may qualify for TPS:
- An ongoing armed conflict (civil war).
- An environmental disaster (earthquake, hurricane, etc.).
- Or epidemic (medical outbreaks, famine).
- There are also other temporary conditions which may allow a country to receive TPS.
Once a country has been given TPS its citizens that are in the United States receive the following benefits:
- Are not removable from the Unites States.
- Can obtain an employment authorization document (EAD).
- May be granted travel authorization.
- Cannot be detained by DGH on the basis of his or her immigration status in the United States.
TPS is a temporary benefit that does not transition into lawful, permanent resident status or give any other immigration status. However, under TPS, you can:
- Apply for non-immigrant status.
- File for adjustment of status based on an immigrant petition.
- Apply for any other immigration benefit or protection in which you may be eligible.
Please Note: In order to be granted any other immigration benefit you must still meet all the eligibility requirements for that particular benefit. An application for TPS does not affect an application for asylum or any other immigration benefit and vice versa. Denial of an application for asylum or any other immigration benefit does not affect your ability to register for TPS, although the grounds of denial of that application may also lead to denial of TPS.