What Can Be Done To Stop My Removal Proceeding?
If someone is facing removal proceedings, they should first determine whether or not there is a way to have the proceedings terminated. There are different grounds for that, and this is an area where the law is constantly changing. If removal proceedings are brought based upon a criminal record, then the individual may be able to challenge whether the crime they’ve been convicted of is actually within the category of crimes that makes them deportable. Alternatively, they may be able to go back to the criminal court and have their conviction vacated. Defects in the notice to appear might also be grounds for termination of removal proceedings.
For a permanent resident seeking cancellation and removal, the judge has a lot of discretion. For example, the judge can deny the cancellation and removal simply because they don’t like the individual, and vice versa. Typically, having family and community ties, as well as a good job in the US will work in the individual’s favor. The length of time the permanent resident has been in the US, as well as their criminal record will also play a role. If they have a hardship, then they should bring it up because it will make for a more compelling case. Certain types of criminal record will make someone ineligible for cancellation of removal. And it can only be granted once. I had a client who was deported for shoplifting an $8.95 bag of coffee, because he had received cancellation 20 years before and the judge could not grant it a second time. The only way to fix this was to challenge his criminal conviction; there was nothing I could do in immigration court.
There’s another process which is also called cancellation of removal, but it’s very different in that there are many more disqualifying crimes. In addition, exceptional and extremely unusual hardship to a qualifying relative who is a US citizen, or permanent resident, must be shown. These types of hardships must be beyond the normal hardships of family separation or relocation. Medical issues for which treatment is not available or not affordable in the home country might be grounds for showing an exceptional or extremely unusual hardship. If there is a danger in the home country, that could also be included as grounds for extreme hardship, although it is often a reason that is used to obtain asylum instead.
Cancellation of removal is superior to asylum, so when possible, the former should always be sought. If a person is not eligible for cancellation of removal but there is a danger of persecution or torture in their home country, then they should focus on obtaining asylum or withholding of removal. In order to do so, they must show that they have been persecuted or are at risk of being persecuted in their home country. The standard is that there is at least a 10 percent chance of persecution, but it’s unclear how that standard is calculated or determined. In most cases, it will be up to the judge to decide whether they think there is at least 10 percent chance of persecution.
The persecution has to be done either by the government or by an entity whom the government is unable or unwilling to control. In most places in the world today, the persecution is done by someone the government cannot control, and not directly by the government. For example, in Central America, gangs will persecute people who refuse to pay them or abusive husbands will persecute their wives. The government won’t do anything about it because they will see it as family business, and therefore not their place to get involved. If someone is afraid of persecution by an entity other than the government in their home country, then they should explore the option of asylum or withholding of removal, although it might be more difficult to obtain.
To qualify for asylum, the must have been done on the basis of race, religion, political affiliation or perceived political affiliation, national origin, or membership in a particular social group. An example of persecution based on political affiliation would be physical abuse as the result of attending a political protest. Demonstrating that persecution has occurred based on an individual’s particular social group tends to be the area where there’s room to argue and attorneys have the opportunity to get creative. It must be shown that there is something about the social group that makes it distinctly recognizable as someone other than a member of the general community.
If someone plans to apply for asylum, they usually must do so within one year of entering the US. If the individual misses this deadline, then they will have to prove that there was a good reason for it. Sufficient reasons can include entering the US with a different kind of status, or having a mental illness that prevented them from filing it. An individual will be ineligible for asylum if they have been convicted of a particularly serious crime, such as murder, rape, drug dealing, or aggravated felony. If someone has been convicted of any crime, they should consult with an attorney about whether or not the crime could make them ineligible for asylum.
Assuming that an individual meets certain conditions, they can apply for a work permit in the US 180 days after they file for asylum. Once asylum has been granted, the individual will be given a more permanent work permit. In addition, they will be eligible to apply for a green card one year after being granted asylum.
In contrast, withholding of removal is not as permanent of a status, nor is it a path to obtaining a green card. A withholding of removal status can also be changed depending in the conditions in the home country. For example, deportation might not be forced during a particular time when the danger is present in the home country, but as soon as that danger has been reduced or eliminated, the withholding of removal could be revoked.
If an individual has a serious enough criminal record, then they should consider the risk of winning their case legally speaking, but still being put in jail, which is possible in a withholding of removal case. The standard for withholding of removal is proving that it’s more likely than not that the individual will be tortured if they return to their home country. This is a higher standard than asylum, and is usually harder to prove. Grounds for obtaining asylum do not even have to be based on the threat of physical injury; it could simply be the inability to obtain employment due to political opinions, or extortion without any physical harm. In some cases, eligibility for withholding of removal might be argued for on the basis of psychological torture, such as a threat of killing the individual’s family. In general, however, it must be based on physical pain or injury.
Since different people have different circumstances, each case is unique. The determination of whether removal proceedings can be terminated or a form of relief can be applied is best made with the assistance of an attorney.
For more information on Stopping A Removal Proceeding In The US, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (617) 297-7502 today.