Removing or Deporting a noncitizen with legal status
These are the noncitizens that have permission to be present in the United States but have committed a violation of Immigration Law that exposes them to losing their status resulting in removal from the United States. These noncitizens include Legal Permanent Residents who are noncitizens who are allowed to permanently live and work in the United States and noncitizens with temporary status or permission to conduct temporary business in the United States, vacation in the United States, attend school in the United States or work temporarily in the United States.
Types of Immigration Law Violations
- Fraudulent Conduct committed by a Legal Permanent Resident or a noncitizen with temporary status that served as the basis for acquiring the legal status to be present in the United States.
- Former Naturalized United States Citizens who lost their Citizenship in a Denaturalization Court proceeding before a Federal Trial Court because of a fraudulent act that now serves the basis for removal from the United States.
- Noncitizens with temporary status who violated a condition of the temporary status or the status has expired while being present in the United States.
- Noncitizens in the United States on a temporary basis who have been convicted of a Driving While Intoxicated or Driving Under the Influence related offense which results in the termination of their temporary status by the United States consulate in the noncitizens country of origin.
- Noncitizens present in the United States on a temporary legal status or Legal Permanent Residents who have been convicted of a criminal offense that specifically violates an Immigration Law that exposes the noncitizen to losing status and being removed from the United States.
Challenging/Contesting the Charge of Removal
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. A noncitizen with Immigration Status that faces removal for violating an Immigration Law may have the option to contest the charge that the noncitizen is removable. What is important to remember is that the government is not infallible. 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 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. Keep in mind that not all removal cases will result in a successful challenge, but successful challenges do happen and all removal cases should be analyzed for consideration of bringing a potential challenge. If the challenge is successful, the noncitizen can terminate the removal proceeding allowing the noncitizen to keep the Legal Immigration status and remain in the United States. A discussion of potential challenges against charges of removal based on a criminal conviction. can be viewed by clicking here.
What are the Defenses or Relief from Removal?.
A noncitizen with Temporary Immigration Status or a Legal Permanent Resident that is found to be removable by an IJ may still be eligible to prevent removal if the noncitizen qualifies for a form of relief from removal created by Immigration Law. Possible forms of relief may include:
Asylum Related Protection. Noncitizens on a temporary status and Legal Permanent Residents can both apply for the different versions of Asylum protection including withholding of removal and Protection under the Convention Against Torture. A detailed discussion of Asylum protection can be viewed by clicking here.
Adjustment of Status. Noncitizens on Temporary Immigration Status who marry a United States Citizen Spouse can seek to apply for a Green Card before an Immigration Judge through the Adjustment of Status Process. In limited circumstances, a Legal Permanent Resident can also Re-Adjust status before an IJ in combination with a waiver to forgive the criminal conviction that is jeopardizing the Green Card. A detailed discussion of the Adjustment of Status process can be viewed by clicking here.
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. A detailed discussion about Cancellation of Removal for Legal Permanent Residents can be viewed by clicking here.
Waivers for acts of misrepresentation or fraud. Required in cases where a noncitizen obtained status or any other benefit under state or federal law 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.
Acquired Citizenship. In a limited circumstance 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. Because determining acquisition of Citizenship is a complicated process, due in part because of years of changing Citizenship laws, many noncitizens including Legal Permanent Residents may not know they are actually United States Citizens. For a detailed discussion addressing Ways in becoming a United States Citizen can be viewed by clicking here.
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