Removal, formerly known as deportation, is a legal process that involves transporting a foreign born individual from the United States to their country of origin. A non-U.S. citizen may be subject to deportation or removal for a number of different reasons. These include failing to obey the terms of their visa, committing marriage fraud, or for being convicted of a criminal offense. The most common reason for removal, however, is usually due to violating an immigration law.
There are some cases in which the grounds for removal may be improper or incorrect. In order to build a strong deportation case that demonstrates why the removal process should be stopped, the foreign born individual will need to prove that they have a legally valid reason to remain in the United States.
Some defenses that may prevent a foreign born individual from being removed include:
- Proving that they are in fact a U.S. citizen (e.g., either through birth, a naturalized parent or grandparent, etc.).
- Petitioning for cancellation of removal when the individual is being removed for a criminal conviction that is not considered an aggravated felony by demonstrating:
- That they have been a lawful permanent resident for at least five years or longer;
- That they have resided in the United States for a continuous period of seven years; and
- That they have not been convicted of committing an aggravated felony (e.g., murder, kidnapping, rape, etc.).
- Petitioning for waiver of removal when the individual is being removed for pleading guilty to a criminal conviction that occurred before April 24, 1996, by proving:
- That they are a lawful permanent reside;
- That they have legally lived in the United States for at least seven years; and
- That they have not served a prison sentence of five years or longer for an aggravated felony.
- Demonstrating that they are in the United States for the purposes of seeking asylum or are requesting relief under the Torture Convention treaty.
- Petitioning for an adjustment of status to become a lawful permanent resident (e.g., by marrying a U.S. citizen, having a parent who is a U.S. citizen, etc.).
- Petitioning for cancellation of removal and requesting a green card by showing that:
- They have been physically present in the United States for ten years;
- They have good moral character; and
- Being deported would cause an “exceptional” or “extreme” hardship on a spouse, child, or parent who is a lawful permanent resident if the removal is not cancelled.
- Proving another reason that is recognized under the Immigration and Nationality Act (“INA”), such as voluntary departure, abuse, or a refugee waiver.
If the foreign born individual can prove one of the following defenses in the above list or that they need to remain in the United States for some other valid reason, then this can help to solidify their case and increase their chances of avoiding removal.
Aside from collecting evidence, an individual can make their case stronger by hiring an attorney who handles removal cases and is familiar with the removal process. Your attorney can also ensure that you understand your rights and that those rights are protected. Additionally, your attorney can provide representation at your removal hearing and can help you appeal the court’s initial decision if necessary.
In sum, the best way to prepare a strong case against removal is by:
- Providing sufficient evidence that supports why you should remain in the United States;
- Hiring an experienced removal attorney who can help you prove your case; and
- Knowing your rights as well as what defenses are available under various federal and state immigration laws.
What Type of Documents and Questions Should I Gather Before I Meet with My Immigration Lawyer?
There are a number of items that a foreign born individual should be sure to collect before they meet with their immigration lawyer.
Some types of documents that an immigration lawyer will want to review at the meeting include:
- Legal documents related to the removal case (e.g., Notice to Appear, Notice of Hearing, etc.);
- A list of witnesses willing to testify in the individual’s favor (e.g., good moral character) and/or against removal;
- A copy of their birth certificate or other document that specifies their country of origin;
- A copy of their passport and any supporting documentation that proves they entered the country lawfully;
- Their green card or permanent resident card (if applicable); and
- Various other items that will depend on the reason that they are seeking relief from removal:
- For example, if the individual is alleging that they obtained permanent resident status through a qualified spouse, parent, or child, then they should bring copies of that family member’s:
- Birth certificate or permanent resident card;
- Marriage certificate;
- Financial records; and/or
- Real estate documents (e.g., lease, mortgage, joint title with spouse, etc.).
On the other hand, if the individual is asserting that they are eligible for cancellation of removal, then their immigration lawyer will need to review a different set of documents. Thus, in this instance, the individual should bring the following documents:
- Letters of recommendation that provide evidence of good moral character;
- Documents that show the individual has had a continuous presence in the United States for at least ten years (e.g., financial records, pay stubs, mortgage contracts, utility bills, etc.);
- Evidence that demonstrates a dependent relative will suffer extreme hardship if the individual is deported (e.g., a child, spouse, or parent); and
- Prior criminal records (if applicable).
In addition, the individual should also prepare a list of questions for the meeting. For instance, if they do not understand a specific removal requirement or they have a question about the court hearing like what to wear, then they should ask these questions during the meeting with their immigration lawyer.
What Makes a Strong or Weak Case for Removal or Deportation?
As previously discussed, a foreign born individual can prepare a strong case against removal by hiring the right lawyer, providing sufficient evidence to support their reasoning, and complying with various immigration laws and requirements. Generally speaking, the stronger their evidence is, the better their chances are of preventing removal.
In contrast, a case can be made weaker by doing the opposite of all of the actions just mentioned. For instance, if the individual does not have a solid reason to remain in the United States or does not submit sufficient enough evidence to prove their reason is valid and genuine, then this can hurt their chances of stopping the removal process.
A case may also be made weaker by not hiring a lawyer to defend them. While an individual is not required to retain counsel, it is typically recommended due to the intricacies associated with immigration laws as well as the removal procedure itself.
Lastly, an individual may have a weak case if they have entered the country unlawfully or have been convicted of an aggravated felony. Although there may be some exceptions to these circumstances, they are usually grounds for removal.
What are Some Dos and Don’ts in Removal or Deportation Cases?
Some Dos and Don’ts when faced with a legal matter involving deportation or removal include:
- Do seek the advice of an immigration lawyer. This is absolutely necessary if the individual does not know their rights or does not understand the requirements of removal under the applicable laws.
- Do take note of anything that might disqualify the individual and be sure to mention it at the meeting with their immigration lawyer.
- Do comply with all laws, administrative instructions, and procedural requirements relevant to the removal case.
- Do show up to any court hearings, proceedings, or meetings regarding the removal case.
- Do not lie, mislead, omit, or falsify any information in connection with the removal case. This is especially true when it comes to filling out forms or meeting with an immigration attorney.
- Do not try to evade law enforcement or removal by doing something illegal.
- Do not leave the country while the removal case is pending.
When Do I Absolutely Need a Removal or Deportation Attorney?
In general, the removal process is an extremely complicated area of immigration law. This is because the rules and requirements to prevent a foreign born individual from being removed are not always clear; especially, when it comes to the regulations governing removal defenses.
Thus, you should strongly consider retaining an immigration attorney or a removal attorney if you are in danger of being removed from the country and believe that you have a legally valid reason to remain in the country.
You may also need to hire a removal or deportation attorney when a removal case involves drafting certain legal documents. These include a motion to reconsider, a witness affidavit, or a motion to stay removal, and to help you present a strong legal defense against your removal.
Additionally, if you are not a lawful permanent resident and need to apply for an adjustment of status or for a green card based on a cancellation of removal defense, then you should consult a removal attorney. They can help ensure that this process goes smoothly and that your green card will be valid as well.