Removal Defense

 

Asylum

Foreign nationals who have fled their home country or fear returning to their home country or place of last habitual residence because of persecution may qualify for asylum in the United States. A fear of general country-wide violence is not sufficient to support a claim for asylum. Asylum may be filed affirmatively with an asylum office of the U.S. Citizenship and Immigration Services or may be filed as a defense to removal in U.S. immigration court.

 

In order to qualify for asylum, an individual must demonstrate that s/he reasonably fears that s/he would be persecuted for one of the following reasons: 

1.  Race
2.  Religion
3.  Nationality
4.  Membership in a particular social group, or
5.  Political opinion

 

Persecution is defined as the infliction of harm or suffering in an offensive way. Although it does not necessarily require physical harm, discrimination alone is not sufficient to establish persecution.

 

In addition, an applicant must show that the government was the persecutor or that the government is unable or unwilling to protect an applicant from the person or persons the applicant fears will harm him/her. Generally an applicant must file an application for asylum within one year of his/her arrival in the United States unless s/he can demonstrate changed country conditions or extraordinary circumstances , such as a serious illness, that prevented him/her from filing the application within one year of entry.

 

Applicants for asylum may also include his/her spouse and unmarried children under 21 who are present in the United States in the application for asylum. Approved applicants for asylum whose spouse and children are living outside of the United States may file a petition to bring his/her spouse and unmarried children who are under 21 to live in the United States with them. The petition must be filed within two years of the approval of the asylum application.

 

Individuals who are approved for asylum may work in the United States and may apply for lawful permanent residency one year after the date of the asylum approval. Asylees may also travel outside of the United States but need to obtain a refugee travel document from U.S. Citizenship and Immigration Services before leaving the United States. However, please note that traveling to the country from which asylum was sought can result in a revocation of asylee status.

 

Asylum law is very complicated and requires submission of substantial documentation in support of a request for asylum. If you fear returning to your home country or place of last habitual residence, please contact our office for a detailed assessment regarding your potential eligibility for asylum.

Cancellation of Removal

Cancellation of removal is an immigration benefit that is available to certain lawful permanent residents as well as non-lawful permanent residents who are currently in removal proceedings and facing the possibility of deportation from the United States.  Lawful permanent residents who are granted cancellation of removal will maintain their lawful status in the United States, and non-lawful permanent residents granted cancellation of removal will receive lawful permanent residency in the United States.

 

A.  Cancellation of Removal for Lawful Permanent Residents

Lawful Permanent Residents who have been placed into removal proceedings for possible removal from the United States may qualify for cancellation of removal as a defense to removal if they meet the following requirements:

  1. They have been lawfully admitted for permanent residence for at least five (5) years;

  2. They have resided continuously in the United States for seven (7) years after having been admitted in any status; and

  3. They have not been convicted of an aggravated felony

 

The term “aggravated felony” is defined specifically by U.S. federal immigration laws, and in some cases includes crimes that are considered misdemeanors under state laws.   If you are a lawful permanent resident who has been placed in removal proceedings due to criminal convictions, please contact our office for an assessment of your eligibility for Cancellation of Removal as a defense to removal.  

 

B.  Cancellation of Removal for Non-Lawful Permanent Residents

Non-lawful permanent residents who are in removal proceedings may apply for cancellation of removal as a defense to deportation if they meet the following requirements:

  1. They have been physically present in the United States for a continuous period of 10 years or more immediately preceding the date of the issuance of the Notice to Appear, which is the charging document notifying a person that removal proceedings have been instituted against them;

  2. They have been a person of good moral character during those 10 years;

  3. They have not been convicted of certain disqualifying crimes; and

  4. They must establish that their removal from the United States would result in exceptionally and extremely unusual hardship to their spouse, parent, or child who is a lawful permanent resident or citizen of the United States.

 

Exceptional and extremely unusual hardship is defined as hardship that is substantially beyond what would normally result from the deportation of a close family member.   Factors to be considered in determining whether sufficient hardship exists include:

  1. The age of the qualifying relative(s);

  2. The health of the qualifying relative(s);

  3. The qualifying relative’s length of residence in the United States;

  4. Family and community ties in the United States as well as abroad; and

  5. Special educational or developmental needs of the qualifying relative;

 

A lower standard of living, diminished educational and employment opportunities, poor economic conditions, and other adverse conditions in the country of removal are also relevant factors that may be considered, but these factors, when considered individually, are not sufficient hardship to qualify for cancellation of removal. If you or a family member would like additional information regarding cancellation of removal for non-lawful permanent residents as a defense to removal, please contact our office for a consultation to assess your eligibility.  

Deferred Action for Childhood Arrivals(DACA)

On June 15, 2012, President Obama announced the creation of a new temporary immigration benefit that allows certain individuals who came to the United States as children to live and work temporarily in the United States.  Individuals who meet the requirements below, may request deferred action for childhood arrivals, or DACA, for a period of two years, subject to renewal, and may qualify for employment authorization.  

 

 

You may qualify for DACA if you:

1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States before your 16th birthday;
3. Have continuously resided in the United States since June 15, 2007 to the present;
4. Were physically present in the United States on June 15, 2012 and at the time of making your request for deferred action;
5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor, three or more misdemeanors, and do not otherwise pose a threat to national security or public safety;

 

Deferred action is a temporary protection against removal from the United States.  However, it is discretionary and does not constitute having a lawful status in the United States.   If an individual is granted deferred action and employment authorization pursuant to the request for deferred action, s/he may apply for a social security number and in many states, may also obtain a valid driver’s license.  

 

If you would like additional information or assistance in applying for deferred action for childhood arrivals, please contact our office at 704-602-0042.

 

 

Relief for Battered Immigrants

Under the Violence Against Women Act(or VAWA), spouses and unmarried children under 21 of U.S. citizens or lawful permanent residents (LPR) who have been subjected to abuse or extreme mental cruelty by a U.S. citizen or LPR spouse or parent may qualify for special immigration protections as a result of the abuse they have suffered.  A spouse or unmarried child under 21 of a U.S. citizen or LPR who has been abused by his/her U.S. citizen or LPR spouse or parent may file a special petition with U.S. Citizenship and Immigration Services known as an I-360 self-petition for battered immigrants.  Abused spouses may also include their unmarried children under 21, and abused children may also include their non-abusive parent on the petition.  

 

In order to qualify for an I-360 self-petition, an applicant must demonstrate the following:

  1. Bona fide qualifying relationship to a U.S. citizen or lawful permanent resident spouse or parent.  If applying as a spouse, one must show that they entered the marriage in good faith and not solely for immigration purposes;

  2. Proof of residing with the abusive spouse or parent in the United States;

  3. Proof of having been subjected to abuse and/or extreme mental cruelty by the U.S. citizen or LPR spouse or parent; and

  4. Proof of good moral character.

 

Individuals may file a self-petition up to two (2) years after divorce from the U.S. citizen or LPR spouse. However, applicants who have re-married do not qualify for an I-360 self-petition.  Furthermore, if an applicant gets re-married while an I-360 petition is pending, the petition will be denied.  In addition, if the LPR spouse was deported within the last two (2) years due to domestic violence, the I-360 self-petition may still be filed.  

 

Battered spouses and unmarried children under 21 of U.S. citizens and Lawful Permanent Residents may qualify for lawful permanent residency based upon an approved I-360 self-petition.  Spouses and unmarried children under 21 of U.S. citizens may file an application for permanent residency simultaneously with the I-360 petition, and the application will be adjudicated immediately upon approval of the I-360.  

 

Spouses and unmarried children under 21 of Lawful Permanent Residents will only be able to apply for lawful permanent residency once a visa becomes available.  Depending on the country the self-petitioner is from, the self-petitioner may have to wait several years after the I-360 is approved before s/he can apply for a green card.  If the Lawful Permanent Resident spouse or parent had previously filed an I-130 petition for the self-petitioner, the self-petition may use the date the I-130 was filed to determine when a visa will become available.  In some cases, a visa may already be available at the time of filing the I-360.  Once the I-360 is approved, battered spouses and unmarried children under 21 of lawful permanent residents who do not yet qualify for permanent residency may apply for and receive permission to work in the United States until they are eligible to file the application for permanent residency.  

 

For additional information on the specific requirements for the I-360 petition or assistance in filing an I-360 petition, please contact our office.  If you have been abused by a spouse or parent who is not a U.S. citizen or lawful permanent resident, you have been divorced for more than two years from your abusive U.S. citizen or LPR spouse, or you are not married to your abusive partner, please see the section entitled U Visas. 

 

Temporary Protected Status

Temporary Protected Status (TPS) is a temporary status granted to citizens of certain countries who are present in the United States and unable to safely return to their home country due to armed conflict, environmental disasters, or other extraordinary circumstances.

 

Designated countries are determined by the Department of Homeland Security.  Typically the Department of Homeland Security will designate a country for an initial period of 12-18 months, which may be extended indefinitely for additional periods of 12-18 months.

 

Individuals who are granted TPS may apply for employment authorization to work in the United States while in TPS status.   In addition, individuals who have been granted TPS may travel outside of the United States with an approved travel document known as advanced parole (AP).  Individuals who have been granted TPS status must apply for and obtain the advanced parole document BEFORE leaving the United States or their TPS status will be terminated.

 

To qualify for temporary protected status, individuals must demonstrate the following:

♦ The applicant has been continuously physically present in the U.S. since the effective date of the most recent designation of their country;
♦ The applicant has continuously resided in the U.S. since the date designated by the Attorney General for their country;
♦ The applicant has not been convicted of a felony or two or more misdemeanors;
♦ The applicant has not persecuted others; and
♦ The applicant has registered for temporary protected status during a designated registration period or qualifies for late registration

 

Currently, the following countries are designated for temporary protected status:

♦ El Salvador
♦ Honduras
♦ Haiti
♦ Somalia
♦ Sudan
♦ South Sudan
♦ Syria

Designation dates and registration periods vary by country. If you are a citizen of one of the above-designated countries and would like to schedule a consultation to assess your eligibility for TPS, please contact us at (704) 602-0042.

 

U Visas for Victims of Crime

If you have been a victim of a crime while here in the United States you may qualify for a U visa.  A U visa is a temporary visa available to immigrant victims of certain violent crimes that allows them to live and work in the United States.  A person granted a U visa may reside and work in the United States lawfully for up to four (4) years.  A person who remains continuously in the United States for three years after being granted U visa status may then apply for lawful permanent residency in the United States if they continue to maintain their U visa status and have not unreasonably refused to provide assistance in any investigation or prosecution of the crime after obtaining the U visa.

 

One may qualify for a U visa if he or she has been the victim of one of the following crimes:

1. Rape
2. Torture
3. Human trafficking
4. Incest
5. Domestic Violence
6. Sexual Assault or Abusive Sexual Contact
7. Prostitution or Sexual Exploitation
8. Female Genital Mutilation
9. Being held hostage or kidnapping
10. Criminal restraint or false imprisonment
11. Peonage or slave trade
12. Extortion or blackmail
13. Manslaughter or murder(the qualifying victim would be considered the surviving spouse, parent, or unmarried child under 21 of the actual victim if such person was not involved in the crime)
14. Felonious assault
15. Witness tampering or obstruction of justice
16. Perjury
17. Attempt, conspiracy, or solicitation to commit any of the above mentioned crimes
18. Any crime similar to the above listed crimes

 

Unfortunately, a misdemeanor assault is not a qualifying crime unless it can be categorized as  another type of qualifying crime such as a crime of domestic violence.  

 

An applicant for a U visa must demonstrate the following:

1. He or she is a victim of a qualifying crime;
2. He or she has suffered substantial physical or mental abuse as a result of having been a victim of that crime;
3. He or she possesses information concerning the crime or if he or she is under the age of 16, his/her parent, guardian, or next friend possesses such information;
4. He or she has been helpful, is being helpful, or is likely to be helpful in the investigation  or prosecution of the crime or if under the age of 16, his/her parent, guardian, or next friend have been helpful; and
5. The criminal activity occurred here in the U.S. or was in violation of the laws of the United States or its territories;

 

All applicants for a U visa are required to submit, as part of the U visa application packet, a certification signed by a law enforcement official authorized to sign such certifications verifying that the applicant has been a victim of a qualifying crime and has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution.   Law enforcement officials are not required by law to sign such certifications.  

 

Applicants over the age of 21 may also include their spouse and unmarried children under 21 in the U visa application if their family member was not a participant in the crime committed.  Applicants under the age of 21 may include their spouses, unmarried children, parents, and unmarried siblings under 18 years of age in the U visa application.

 

Ms. Ziemba has extensive experience representing victims of violent crimes in obtaining U visas as a defense to deportation.  She is regularly called upon to conduct trainings on the U visa for other attorneys as well as government and law enforcement officials.  For additional information about the U visa process and how Ziemba Law Firm can assist you in applying for a U visa, please contact our office at (704) 602-0042 for a consultation.