What Are The Options For Relief Once The Case Is In An Immigration Court? What Are Some Defenses To Deportation Or Removal?
In addition to the things I already mentioned, there are a few other things that are a bit less common but that still happen reasonably often. If you’ve committed any kind of fraud, that makes you ineligible to stay in this country, though there are different forms of relief that could potentially be available, depending on what exactly the untruthful statement or document was and where the fraud was in the process. The important thing with any kind of waiver for fraud is that you need to be scrupulously honest. It’s better to be honest all the time, but particularly when you’ve already done something that was false or fraudulent, which makes all your behavior seem suspect. You need to come clean about whatever you’ve done, ask for the mercy of the court, and explain why you deserve to be allowed to stay in the United States despite doing the wrong thing before.
Committing fraud is a somewhat common thing. In addition to that, people who are already eligible for a green card but who hadn’t applied for one can apply to get their green card through the immigration judge. Cancellation of removal for non-lawful permanent residence does get you a green card if it’s granted, but there’s also adjustment of status based on someone petitioning for you outside of immigration court. You would need a family member who is eligible. They have to file the petition. The I-130 is still decided by U.S. Citizenship and Immigration Services, not the immigration judge, but the I-485, which is the bigger document, is decided by the immigration judge.
If Cancellation Of Removal Is Denied And All Other Attempts Have Failed, Where Do We Go From There? Is This A Hopeless Case At That Point?
There are still a couple of possibilities. The first possibility is what’s called voluntary departure, which is kind of a weird term since it’s never really voluntary. Nevertheless, it’s an alternative to deportation, so you would leave the country, but it wouldn’t count on your record the same way that a removal order would count. You can actually apply for pre-hearing or post-hearing voluntary departure. The terms of pre-hearing voluntary departure are a little better, perhaps because they want to encourage people to take it. Typically, however, if someone has any viable opportunity to stay in the United States, I wouldn’t encourage them to go for pre-hearing voluntary departure. Post-hearing makes more sense as the last alternative that the judge might give you.
It is still up to the judge, who can choose to order you deported instead, but a lot of times, the judge will grant voluntary departure. The advantage of this option is that you may be able to get back into the United States in the future more easily than if you had a removal order. If you are ordered removed from the United States, that’s typically a ten-year bar, but it could even be a permanent bar if you reenter illegally after being deported.
There are a lot of advantages to avoiding a removal order, and it can make sense to accept voluntary departure. It is not, however, a decision that should be made lightly because getting a removal order is the only obstacle that you eliminate by accepting voluntary departure. If you have a criminal record or unlawful presence in the United States (or whatever you’re getting deported for), that may also create additional barriers to you being able to return, even if you accept voluntary departure. You would want to consult with an attorney about whether you have a relative who’d be able to petition for you to come back to the US and what your chances of actually getting any waivers that you need would be.
Another possibility is appealing the case. There are actually several stages of appeals that are possible. The first is to the Board of Immigration Appeals, which is another administrative court, like immigration court. Your appeal would be decided by a judge who is appointed by the attorney general, who, of course, is appointed by the president. The Board of Immigration Appeals is a little more subject to the whims of political processes, but it could still decide your case differently than the immigration judge.
Beyond the Board of Immigration Appeals, you’d appeal to the Court of Appeals for whichever federal circuit you’re in. You can appeal certain cases to the Court of Appeals. While all cases can be appealed to the Board of Immigration Appeals (with a few minor exceptions), the right of appeal beyond that is somewhat more limited. You can, for instance, appeal to the Board of Immigration Appeals just based on not liking how the judge decided the case, but there has to be some Constitutional or legal error in the Board of Immigration Appeal’s decision to appeal to the Court of Appeals. If such an error exists, you can go to the Court of Appeals and potentially even to the Supreme Court if you lose at the appellate court level. In the Appeals Court, you have a right to appeal to them as long as there’s a valid issue, while in the Supreme Court, you have to ask them to take the case (and they usually won’t). So, for most people, the end of the line will either be the Board of Immigration Appeals or the Appeals Court, depending on what the issues are in their case.
That’s the standardized, most straightforward path. There are other possibilities, including a motion to reopen or a motion to reconsider. Those motions both go back in front of the same judge who decided the case before. The difference is that a motion to reconsider argues that they made some kind of legal error that you want them to change, while a motion to reopen is based on some kind of factual error (which typically has to be based on new evidence that wasn’t available at the time of your hearing for some reason).
There are, at least in theory, pretty strict deadlines on all of those options. The deadline for appeal is 30 days, the deadline for a motion to reconsider is 30 days, and the deadline for a motion to reopen is 90 days. For motions to reopen or to reconsider, there are sometimes more possibilities of filing them after the deadline, if you can make an argument that it’s not fair for the deadline to be applied in your case.
If you’re below the deadline, you should definitely talk to an attorney right away because you want to get in before the deadline, if possible. If you’re beyond the deadline, it would still be a good idea to consult with an attorney and see if there are grounds for an exception to the deadline.
Regardless Of My Situation, When It Comes To Immigration, What Is The Clear Benefit To Having An Experienced Immigration Attorney On My Side?
You have someone who knows the process, who knows the law, and who will evaluate all of your options so that you can pursue any form of relief you might be eligible for. If you’re not eligible for anything, then you can get an accurate opinion about that and figure out how to move on with your life. Knowing the law—knowing how to persuade judges and how to put a case together into what kind of evidence they like to see—will help you present the best possible case.
For more information on Deportation & Removal Law in Massachusetts, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (617) 718-5550 today.
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