Removal defense — Yevoli & Malayev, PLLC

Deportation is the removal of a person who entered the U.S. either lawfully or unlawfully. To avoid becoming the subject of removal proceedings, you must maintain a valid immigration status or lawful presence.

If you find yourself in removal proceedings, various forms of relief may be available — including waivers, cancellation of removal, deferred action, asylum and protection under the Convention Against Torture, among others.

Waivers

Waivers often, but not always, require that you establish hardship — or extreme and unusual hardship — to you or your family if you were deported. Sometimes the length of your stay in the U.S. makes a difference too. There are numerous waivers in U.S. immigration law. Which one applies depends on your status or your family’s status, how long you have lived here, the nature of the immigration violation or criminal history, and how and when you entered the United States.

Cancellation of removal

There are two types.

Non-LPR

If you have resided in the U.S. for more than 10 years, can demonstrate that you are a person of good moral character, and can show that deportation would result in extreme and unusual hardship to a spouse, parent or child who is a lawful permanent resident or U.S. citizen, an immigration judge may grant cancellation of removal at their discretion. That then allows you to apply for adjustment of status.

LPR

If you are a lawful permanent resident facing deportation for any reason — including many criminal convictions (drugs, guns, assault, theft, fraud, crimes involving moral turpitude) or immigration violations such as fraud — and you have resided continuously in the U.S. for 7 years after being inspected and admitted in any status, have held a green card for 5 years, and have not been convicted of an aggravated felony, cancellation may be granted as a matter of discretion.

Deferred action

Certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization. Deferred action is a discretionary determination to defer removal as an act of prosecutorial discretion. It does not provide lawful status.

Asylum

Asylum is available to someone who is unable or unwilling to return to their home country because of persecution, or a well-founded fear of persecution, on account of race, religion, nationality, political opinion or membership in a particular social group.

There are two routes into it. An affirmative application is filed with USCIS by someone who is not in removal proceedings. A defensive application is raised before an immigration judge once proceedings have already begun — which is where most of our asylum work happens.

Timing matters here more than almost anywhere else in immigration law. An asylum application generally must be filed within one year of your last arrival in the United States. Exceptions exist for changed circumstances and for extraordinary circumstances, but they have to be argued and proven — never assumed.

If asylum is barred

Where asylum is unavailable — because of the one-year deadline, a criminal ground, or another bar — two related protections may still be open:

Withholding

Withholding of removal requires a higher standard of proof than asylum and grants less: it stops removal to the country of feared persecution, but does not lead to a green card or allow you to petition for family.

CAT

Protection under the Convention Against Torture is available to someone likely to face torture at the hands of, or with the acquiescence of, their government. Unlike asylum, it has no criminal bars.

Temporary Protected Status

The Secretary of the Department of Homeland Security has authority to create and extend temporary protected status for foreign nationals unable to return to their home countries for a temporary period — because of war or other conflict, an environmental disaster, or other extraordinary but temporary circumstances.

TPS is not awarded automatically to everyone from a designated country. You must apply with USCIS, and certain preconditions apply. Designations are also terminated from time to time, often with short windows to act — check with us for the countries that currently qualify and for the deadlines attached to any termination.

Appeals

A denial by an immigration judge, U.S. Citizenship and Immigration Services or the State Department is not the end of your case. Our team can help you challenge adverse actions through the administrative and legal processes. A wide variety of matters can be appealed, including:

Denial of a visa application
Denial of an application for a green card
Denial of labor certification
Denial of naturalization
A deportation order

Appeal may not be your only option, or even the best one. In some instances it is preferable to file a motion asking USCIS to reopen or reconsider an unfavorable decision — supported by newly discovered evidence, changed circumstances, or new legal arguments if the previous decision was made incorrectly.

We regularly assist individuals and employers who experience a denial or a revocation of a previously approved case. All available options must be weighed, and sometimes a multi-pronged approach works best.

Is this your situation?

Bring us the facts and we will tell you what relief may realistically be available — and what it costs, as a flat fee.

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