Removal Defense before the Immigration Court

Removal proceedings are initiated when the U.S. Department of Homeland Security issues a Notice to Appear (NTA) against a non-citizen to try and remove or “deport” them from the United States. The NTA is issued when it is believed that the non-citizen is not entitled to stay or cannot be lawfully admitted to the United States. Failure to attend the hearing before the immigration court will automatically result in the immigration judge entering an order of removal or “deportation.” However, it is possible to apply for immigration benefits, or relief from removal during immigration court proceedings. Some examples of possible relief include, but are not limited to: Cancellation of Removal, Asylum, Adjustment of Status, Deferred Action, Voluntary Departure, and Waivers for Inadmissibility.

Individuals in removal proceedings have the right to legal representation, however unlike state or federal court, there are no court-appointed attorneys. An individual facing removal proceedings before the Immigration Court should consult with an immigration attorney. Spahn Law Firm meets with clients individually to evaluate their eligibility for relief from removal or deportation. We provide honest and zealous advocacy to individuals facing removal, so they can make well-informed decisions about their options in immigration court.

U Visas

U Visas are temporary visas for victims of certain crimes who have assisted, are currently assisting, or are likely to be of assistance to law enforcement officials in the detection, investigation, or prosecution of certain criminal activity in the United States. Individuals who are eligible for U Visas may also be eligible to include certain family members as derivative applicants. In order to qualify for a U Visa, applicants must demonstrate the following:

  • He or she is the victim of a qualifying crime;
  • He or she suffered substantial mental or physical suffering as a result of the crime;
  • He or she possesses information about the crime and is being, has been, or is likely to be helpful to law enforcement officials in the detection, investigation, or prosecution of the crime; and
  • The criminal activity occurred in the U.S. or was in violation of the laws of the United States and its territories.

Each U Visa applicant is required to submit a U Visa Certification signed by an authorized law enforcement official verifying that the applicant was the victim of a qualifying crime and has been, is being, or is likely to be helpful in the detection, investigation, and prosecution of the crime. Each law enforcement agency has discretion to sign the required certification.

If granted, a U Visa holder may live and work in the United States for up to four (4) years. After holding a U Visa for three (3) years a U Visa holder may then apply for lawful permanent residency if they have not unreasonably refused to provide assistance to law enforcement officials and have maintained continuous residence in the United States.

VAWA Self-Petitions

The Violence Against Women Act (VAWA) provides protection for certain victims of domestic violence, regardless of gender. An abused or battered spouse or child of a U.S. citizen of Lawful Permanent Resident may file a VAWA Self- Petition. Abused spouses may also include their unmarried children under the age of 21, and abused children may include the non-abusive parent on their petition as derivative applicants.

In order to qualify for a VAWA Self-Petition, the self-petitioner must establish:

  • A bona fide qualifying relationship with the U.S. citizen or lawful permanent resident abuser;
  • If the qualifying relationship is based on marriage, the self- petitioner must also demonstrate that the marriage was entered into in good faith
  • Evidence of residence with the abuse parent or spouse;
  • Evidence that he or she was subjected to abuse or extreme cruelty; and
  • Evidence of good moral character.

Individuals who are interested in applying for VAWA based on marriage to an abusive U.S. citizen or lawful permanent resident spouse may file up to two (2) years from the date of divorce. However, remarriage renders the individual ineligible.

Individuals who have their VAWA petitions approved may qualify for lawful permanent residence. Spouses and children of abusive U.S. citizens may file their applications for lawful permanent residency concurrently with their VAWA self- petitions. Spouses and children of abusive lawful permanent residents may apply for their lawful permanent residence when the visa becomes available.

Asylum

Individuals who flee their home countries due to fear or persecution may qualify for asylum. Asylum may be applied for affirmatively before U.S. Citizenship and Immigration Services, or defensively before the Immigration Court for individuals who are in removal proceedings. In order to qualify for asylum, an individual must establish:

  • that he or she has a reasonable fear of persecution on account of their
    • Race;
    • Religion;
    • Nationality;
    • Political opinion; or
    • Membership in a particular social group; and
  • That the government in their home country is unable or unwilling to provide protection.

In general, applicants for asylum must file their applications within one (1) year of their last entry to the United States; however, there are some exceptions to the filing deadline.

Applicants for asylum may include his or her spouse and unmarried children under the age of 21 as derivative applicants on their petition if they currently reside in the United States. If an applicant is granted asylum, they may then petition for their spouse and unmarried children under the age of 21 who are outside of the United States.

Individuals who are granted asylum may live and work in the United States indefinitely. They may be eligible to travel outside of the United States, but only if they obtain a refugee travel document from U.S. Citizenship and Immigration Services before departing the country. Asylees may apply for lawful permanent residence after holding asylum for one (1) year.

Humanitarian Parole

Humanitarian Parole allows certain individuals who are outside of the United States to apply for permission to enter the United States temporarily due to urgent, humanitarian reasons. Requests for Humanitarian Parole must contain sufficient documentation of the qualifying humanitarian reason(s) why parole is being requested, and are adjudicated on a case-by- case basis. If parole is granted, the length of time an individual will be permitted to stay in the United States will correlated with the humanitarian reason for the request.

Individuals who enter the United States under a grant of humanitarian parole must depart prior to the expiration. Failure to timely depart the United States may result in the individual being placed in removal proceedings. Requests to extend a grant of humanitarian parole may be submitted.

Special Immigrant Juvenile Status

Special Immigrant Juvenile Status (SIJS) is a benefit that is available for children who are physically present in the United States and meet the following requirements:

  • He or she is under the age of 21 and unmarried;
  • He or she is subject to a state court custody order which finds the following:
  • He or she was abused, abandoned, or neglected by one or both parents;
  • Reunification with one or both parents is not viable; and
  • It is not in their best interest to return to their home country or country of last habitual residence.

In order to be eligible to file SIJS, the minor child’s guardian or custodian must obtain a state court custody order with the requisite findings. Once the requisite state court order is obtained, the minor child may apply for Special Immigrant Juvenile Status before U.S. Citizenship and Immigration Services. The SIJS approval notice does not grant the applicant lawful status or employment authorization, but it then allows the individual to apply for their lawful permanent residence. Depending on where the applicant is from and whether they are in removal proceedings before the immigration court, they may be able to apply for lawful permanent residence concurrently with SIJS, or they may have to wait for the visa to be available.

It is important to note many state courts will only be able to exercise jurisdiction and enter a predicate state court order while the child is under 18, even though they are eligible for SIJS so long as they under the age of 21.

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