Removal, Deportation, Inadmissability, Relief from Removal
Removal is the legal process of expelling an alien from the United States. Grounds for removal include inadmissibility and deportability.
Deportable is an Alien admitted to the United States subject to any grounds of removal specified in the Immigration and Nationality Act. These grounds include any alien illegally in the United States, no matter whether the Alien entered the US legally but subsequently violated the terms of the non-immigrant status, or, whether the alien entered the country by fraud or misrepresentation.
Entry into the US requires lawful admission through inspection and authorization by a United States Immigration Officer. To be eligible for lawful admission, the Alien must not be inadmissible. There are many reasons why an Alien may be inadmissible. Some of the reasons are:
Grounds For Inadmissability
- Health Related Grounds ie. Communicable disease, vaccinations, Physical or Mental Disorder, Persons determined to be drug abuser or addict;
- Economic Grounds – Persons likely to be a public charge;
- Past Immigration Grounds – Misrepresentation For Immigration Purposes, Document Fraud, Previous Removal Orders, Overstaying in excess of 6 months, Entering the US without Inspection
- Criminal Grounds – Persons committing crimes of moral turpitude are inadmissible. A crime of moral turpitude is “conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of Morality….” Immigration generally does not list specific crimes as moral turpitude, but rather is the “inherent nature of the crime as defined by statute and interpreted by the courts as limited and described by the record of conviction” Some examples of Crimes of Moral Turpitude are:
- Assault and/or Battery;
- Carrying Concealed Weapon with Intent to Use or Firearms Discharge;
- Child or Spousal Abuse;
- Drug Offenses unless less than 30mg of marijuana
- Driving Under the Influence or Disorderly Conduct;
- Fraud & Misrepresentation
- Money Laundering
- Murder and Voluntary Manslaugher
- Terrorist Threats
Forms of Relief From Removal
An Alien may be eligible for relief from removability, including:
1. Voluntary Departure – The Department of Homeland Security or an Immigration Judge may grant voluntary departure to a person who agrees to depart the US at his or her own expense in lieu of being subject to proceedings. The benefit of Voluntary departure is the Alien avoids the 10-year ban on re-entry and receiving benefits by agreeing to depart the United States voluntarily, thus carrying no impediment to legally returning to the United States.
Conditions may be attached to the granting of Voluntary Departure including the posting of a bond, continued detention pending departure, and departure under safeguards. Aggravated felons and persons engaged in terrorist activities are ineligible for a prehearing of Voluntary Departure. An alien who receives a voluntary departure grant and fails to depart within the specified time frame is ineligible for a period of 10 years for certain forms of relief, including another grant of voluntary departure, cancellation of removal, and adjustment of status
2. Cancellation of Removal – The Process of cancelling the removability of an Alien–
Available to qualifying lawful permanent residents and qualifying non-permanent residents.
For lawful permanent residents, cancellation of removal may be granted if the individual:
- Has been a lawful permanent resident for at least 5 years;
- Has continuously resided in the United States for at least 7 years after having been lawfully admitted; and
- Has not been convicted of an “aggravated felony,” a term that is more broadly defined within immigration law than the application of the term “felony” in non-immigration settings.
Cancellation of removal for non-permanent residents may be granted if the alien:
- Has been continuously present for at least 10 years;
- Has been a person of good moral character during that time;
- Has not been convicted of an offense that would make him or her removable; and
- Demonstrates that removal would result in exceptional and extremely unusual hardship to his or her immediate family members (limited to the alien’s spouse, parent, or child) who are either U.S. citizens or lawful permanent residents.
3. Adjustment of Status – A form of discretionary relief available to Alien’s previously legally admitted and now in Removal Proceedings before an Immigration Judge. Adjustment of Status changes an Alien’s status from non-immigration to permanent resident.
The requirements for this discretionary form of relief are:
- Including that the alien is admissible for permanent residence and an immigrant visa is immediately available at the time of application. Common examples are an Alien being petitioned by a US citizen Spouse or US Citizen child over the age of 21, or an employer.
- Aliens who qualify for visas allowing an adjustment of status are often petitioned for by a spouse (or another family member) or an employer.
- Criminals and aliens who fail to appear for proceedings or fail to depart after a grant of voluntary departure, and/or those who were ordered removed may be ineligible for adjustment of status.
4. Asylum – A discretionary form of relief granted to a “Refugee”. To be considered a refugee and be eligible for asylum, the Alien must prove an an inability to return to his or her home country because of past persecution or a well-founded fear of future persecution based upon his or her race, religion, nationality, membership in a particular social group, or political opinion. Asylum must be filed within the Alien’s first year of arrival in the United States. Convictions of an aggravated felony or being considered a danger to national security may make an Alien ineligible for Asylum. However, Convention Against Torture Act or Withholding of Removal may be alternative forms of relief.
5. Withholding of Removal – A similar and alternative form of relief to Asylum whereby successfully proving the form of relief does not lead eligibility for permanent residence, however employment authorization may be applied for.
To establish withholding of removal relief an Alien must prove that it is more likely than not that their life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion in the proposed country of removal.
6. Protection Under The Convention Against Torture (CAT) – CAT protection is established under Article 3 of the United Nations Convention Against Torture, an International Treaty. CAT protects and obligates the United States and other Member countries to protect aliens from being returned to countries where they would more likely than not face torture. The Applicant must prove that more likely than not that they would be tortured if removed to a specific country. CAT does not make the successfully applicant eligible for permanent residence, however may apply for employment authorization.
Removability and Deportation are very serious matters and require an intelligent defense. It is important to have a skilled Immigration Attorney represent you that understands the process and effectively asserts your defense. Contact Cipolla Law Group for a consultation.