A noncitizen that is present in the United States may face deportation also known as removal when the government discovers that the noncitizen has violated an immigration law or a criminal law that is in direct violation of immigration law. These violations will make a noncitizen without status removable for being inadmissible to the United States, while noncitizens committing an immigration law violation will make them deportable.
Can a noncitizen challenge an allegation that he has committed an immigration law violation?
It is possible. In all removal proceedings, the burden is on the government to prove by a standard known as clear and convincing evidence that the noncitizen is present without Immigration Status or that the noncitizen with Legal Immigration Status violated an Immigration Law.
The government is not infallible, so a noncitizen with Immigration Status that faces removal for violating an Immigration Law may have the option to contest the charge. There are many cases where the government improperly charged a noncitizen, or the government does not have sufficient evidence to meet its burden of proof. An experienced Immigration attorney will know how to diagnose a removal case and determine whether a charge of removability may be challengeable and/or know how to present legal argument to effectively challenge such a charge.
Obviously, a noncitizen in removal proceedings for not having a lawful immigration status will face a more difficult battle in challenging a charge of removability. Regardless, sometimes in these situations the charge of removability for being present in the United States without status, can be challenged by putting in question the method the officer discovered that the noncitizen was without status similar to how evidence of a crime acquired unlawfully by a police officer can result in the evidence being excluded resulting in a criminal charge dropped for lack of evidence. An immigration officer who obtains evidence of a noncitizen’s lack of status unlawfully may also be subject to having evidence of the unlawful status excluded as well. However, immigration officers have much more flexibility in the manner of obtaining evidence of immigration status, so a successful challenge on these grounds is rare.
If the charge of removal cannot be successfully challenged will removal automatically result?
Not necessarily. The next step after an immigration judge confirms that a noncitizen is removable is for the judge to confirm whether the noncitizen can apply for form of relief from removal where if granted by an immigration judge, will result in the benefit granting the noncitizen an immigration status to remain in the United States.
What are available forms of relief from removal?
• Asylum Related Protection
Asylum is a form of protection provided by the United States to individuals from a foreign country who are unable or unwilling to return to their home country because they cannot be protected by their home country because the individual has suffered past persecution, or the individual has a well-founded fear of being persecuted
• Adjustment of Status to a Green Card
If a noncitizen meets the requirements for a green card including the specific requirements to apply for a green card within the United States, a green card application may serve as a basis to stop the removal proceeding based on an immigration judge granting the green card.
• Cancellation of Removal for Legal Permanent Residents
Legal Permanent Residents residing in the United States for more than 7 years after legal admission and living as Legal Permanent Residents for a period of 5 years can apply for Cancellation of Removal which allows an IJ to forgive the criminal conviction violating the Immigration Law. The approval of this application results in the Legal Permanent Resident keeping the Green Card and avoiding removal from the United States.
• Cancellation of Removal for Nonlegal Permanent Residents
Noncitizens with no lawful status who have been present for 10 years or more and who have certain qualifying relatives such as a parent, spouse or child who are either legal permanent residents or U.S. citizens may ask the judge to stop removal and grant a green card if the noncitizen can prove what is known as exceptional and extremely unusual hardship on the qualifying relative. Problem is that in these cases, it’s extremely difficult to meet this high level of hardship.
• Waivers for acts of misrepresentation or fraud
Required in cases where a noncitizen obtained green card status through a fraudulent act or an act of misrepresentation. Certain acts of misrepresentation or fraud have different waivers that could potentially waive or forgive the fraudulent act if the noncitizen convinces an IJ of eligibility and that the noncitizen deserves to be granted the waiver.
• Prosecutorial Discretion
This is where the attorney representing the government which is the immigration version of a prosecutor agrees to request that a judge terminate the removal proceeding because the noncitizen presents sympathetic circumstances.
• Acquired Citizenship
In limited circumstances some individuals believed to be noncitizens may have actually acquired Citizenship from a United States Citizen grand parent or parent. If it is confirmed that the noncitizen is actually a United States Citizen, then the removal proceeding will be terminated, and the newly discovered Citizen can proceed to apply for a Certificate of Citizenship or passport to possess evidence of Citizenship.
It is important to keep in mind that defending against a removal case is a complex process and we strongly advise consulting with an immigration attorney to discuss whether your case can be defended.
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