Reasons for Removal
Removal is a term used to describe the process of deportation. A foreign national can be deported under provisions of the Immigration and Nationality Act (INA) for three reasons: being in the United States illegally, being criminally convicted, and resorting to fraud to remain in the country.
Removal can take place without a hearing if you entered the United States illegally or failed to maintain the status under which you were admitted. Removal can also happen without a hearing if your admission has been revoked or terminated.
Those with a green card and lawful permanent resident (LPR) status, as well as those with F-1 student visas or K-1 fiancé(e) visas, have the right to a hearing and can appeal an adverse decision to the Board of Immigration Appeals (BIA). This group can be subject to removal if they committed a crime or used fraud to stay in the United States.
Crimes that can result in removal include firearms offenses, drug crimes (including addiction), aggravated felonies, domestic violence, and crimes of moral turpitude. Crimes of moral turpitude is a broad category that is never fully described in the INA or other immigration statutes. It generally involves crimes like theft, murder, voluntary manslaughter, and those involving vileness, such as rape or certain other sexual crimes.
Fraud can involve marriage fraud, use of a forged document, alteration of a legal document, or any misrepresentation as a lawful resident or citizen of the United States.
The Removal Process
The removal process begins with the issuance of an NTA before an immigration judge. The NTA will cite the reasons for the action being taken. You will thereafter be known as the “respondent.”
When you appear before the judge at your hearing, you can contest the reasons for the removal or ask for relief from removal. If you do neither, the judge can order immediate deportation. If you seek relief, the judge will order a “merits hearing” to determine whether you qualify.
Relief from Removal
Before your hearing, you will need to meet with an experienced immigration attorney who can weigh your defense and relief options. You may be able to prove the allegations against you that warrant removal are false, groundless, or not serious enough to result in deportation. Your attorney can also help you find a statutory reason for relief from these options:
Cancellation of Removal: This is one of the most widely employed options for relief. It requires you to prove you have been physically present in the United States for ten years and also show that your removal would result in “exceptional and extremely unusual hardship” to a relative – spouse, parent, or child – who is a citizen or lawful permanent resident.
Family-based Adjustment of Status: If you have a family member who is a U.S. citizen and can sponsor your immigration status, you can obtain relief that way.
Asylum: You can seek asylum if you can prove you would be subject to persecution if returned to your home country.
Withholding of Removal: This option hinges on whether you can show you are “more likely than not” to be persecuted if sent home.
Convention Against Torture (CAT) Protection: If you are returned home and you are “more likely than not” to be tortured, you can obtain relief under CAT.
Violence Against Women Act (VAWA): You must show that you’ve been physically present in the United States with good moral character for three years, but have been “battered or subject to extreme cruelty” by a “qualifying relative.” VAWA applies to men and women.
Not all forms of relief end with you obtaining a green card or LPR status. Some just allow you to stop removal while you work on finding a route to obtain LPR status.
The Appeals Process
If you are ordered to be removed, you have 30 days to appeal to the BIA, which does not usually hold a hearing, but just reviews the “paper” documents submitted. This is a good reason to rely on knowledgeable immigration attorneys. They can help you assemble the supporting documents you need to present at your removal or merits hearing, which then become vital if you have to go through an appeal.
If the BIA rejects your appeal, you have another 30 days to file an appeal through the federal court system.