Hundreds of thousands of persons are currently in deportation (removal proceedings) before an Immigration Judge. Depending on where you reside, removal proceedings may take many years or can be over very quickly and with life changing negative results including being taken into custody at the hearing by ICE and deported to your country. If an Immigration Judge denies your case, you have 30 days to appeal the decision to the Board of Immigration Appeals (BIA). If the BIA denies your appeal, you may be able to challenge this denial in the U.S. Federal Court of Appeals having jurisdiction over your case. Having an attorney represent you in court increases your chances of success considerably over representing yourself, although you are free to do so.
Ms. Cardenas aggressively represents each of her clients. She is also known for her compassion and her desire to help her clients achieve success in removal proceedings. She was recognized by the Daily Journal as one of the “Top Up and Coming Litigators in California”, for her extensive and impressive courtroom successes for her clients. She has been recognized by Utah Business Magazine as one of the “30 Women to Watch in Utah.” She has successfully over 100 immigrants in removal proceedings.
It is the government’s burden to establish that they are removable from the US by clear, convincing and unequivocal evidence. If deportation the government meets its burden, you will have an opportunity to apply for any and all forms of relief from removal that you may be eligible for. Common forms of relief include adjustment of status, waivers of inadmissibility and removability, cancellation of removal, adjustment of status, asylum, withholding of removal, the Convention Against Torture, legalization and registry.
How to Avoid Deportation is divided into the following subtopics:
- Request for Prosecutorial Discretion to Terminate or Administratively close proceedings;
- Waivers of Inadmissibility and Removal;
- Cancellation of Removal for Permanent Residents;
- Cancellation of Removal for Non-Permanent Residents;
- Suspension of Deportation;
- Adjustment of Status to Permanent Residence;
- Asylum and Withholding of Removal;
- Legalization and Registry; and
- Voluntary Departure
For each person placed in removal proceedings, Counsel for the Department of Homeland Security is required to review the case to determine whether the person is an enforcement priority based upon many directives and memoranda issued. A request for prosecutorial discretion to close or terminate proceedings against you can be made by you or your counsel at any time during the proceedings. Because the decision to exercise prosecutorial discretion is a decision made routinely, it is imperative that all relevant facts and circumstances be presented to the Department including but not limited to: length of time in the US, immediate US citizen or lawful permanent residency family members, especially US citizen children, any health issues of the applicant and/or family members, steady employment record, charity or social contributions, religious activities, whether the applicant is the primary caretaker of minor children, rehabilitation following a criminal conviction, and the overall suffering of immediate family members if eventually ordered removed.
A most common ground of removability provides that a person may be subject to removal if he was inadmissible when he entered the U.S. Inadmissibility may occur either when you entered the U.S. without having been admitted (i.e. walking from Mexico into the US), or when a person overstays authorization to be present in the U.S. on a visa.
Eligibility for waivers of removal depends upon the person’s ability to establish hardship to himself or to his close family members if he were to be removed from the U.S. Currently those members are Not United States Citizen Children,but are Parents or Spouses who are Lawful Permanent Residents or United States Citizens.
Suspension of Deportation
Expulsion proceedings commenced on or after April 1, 1997 are removal proceedings rather than deportation or exclusion proceedings. However, persons who were placed in deportation proceedings prior to April 1, 1997 as well as NACARA applicants may still be eligible for suspension of deportation.
Adjustment of Status
A deportable alien who is the parent, spouse, widow or child of a U.S. citizen may be eligible to apply to the Judge to adjust his status (using Form I-485) to that of a lawful permanent resident. Also qualified to apply for adjustment of status under section 245(i) of the law are many people whose priority dates for permanent residence are “current” and who had a labor certification or visa petition submitted on their (or their parents) behalf on or before April 30, 2001.
Persons who obtained conditional permanent residence based upon their marriage, or the marriage of their parent, to a U.S. citizen may have their legal status terminated by the USCIS if they fail to meet certain requirements, most commonly when the USCIS has determined that marriage fraud exists. However, once USCIS places them under deportation proceedings, they may renew their applications for adjustment of status to permanent residence before an Immigration Judge. At the trial, you may present evidence and testimony that your marriage was entered into in good faith and not to obtain lawful residency.
Legalization and Registry
Once an illegal alien has been found qualified for legalization or “amnesty” by the USCIS, the deportation hearing will typically be closed since the alien will have attained the legal right to remain in the US.
Registry is another means of attaining lawful permanent residence in the US. It is available to persons who have resided continuously in the U.S. since prior to January 1, 1972, who are of good moral character, who are not deportable based on certain aggravated grounds, and who are not ineligible to naturalize.
Asylum, Convention against Torture, and Withholding of Removal
If placed in removal proceedings, a person may file a “defensive” application for Asylum, Convention against Torture, and Withholding of removal. These forms of relief require detailed testimony which is best supported by corroborating evidence and testimony and expert opinion. The judge will hear your case and decide it.
You qualify for asylum in the US if you have been persecuted or have a “well-founded fear of persecution” in your country based on (1) political opinion, (2) religion, (3) race, (4) nationality, or (5) membership in a particular social group. Recently, the Immigration Courts have recognized persons in a domestic relationship who cannot leave the relationship as a protected social group. This has permitted many women and children from countries such as Guatemala, El Salvador, Mexico, Honduras, and Nicaragua and many other countries where domestic abuse is common and its domestic violence laws either are non-existent or unenforced to seek and obtain asylum in the US in removal proceedings.
Withholding of removal is a special type of order issued by an immigration judge to a person who demonstrates more than a 50% chance that they will be persecuted in their home country on account of their race, religion, nationality, membership in a particular social group, or political opinion. Like asylum, withholding of removal protects a person from being deported to a country where they fear persecution. However, withholding of removal is a very limited benefit in many ways.
Most importantly, a person who is granted withholding of removal is protected from being deported to the country where they fear persecution. However, withholding of removal is inferior to asylum in several important ways.
A person granted withholding of removal has no pathway to a green card or to U.S. citizenship. Because an order of removal was issued, and then withheld, in most cases a person would have to reopen their removal proceedings in order to pursue other immigration options. A person granted withholding of removal is required to pay a yearly renewal fee for an employment authorization document in order to maintain the legal right to work in the United States.
Generally, when a person files for asylum, they automatically apply for withholding at the same time. There is no one-year filing deadline for withholding applications, and it is not discretionary. That is, if someone proves that they are eligible for withholding, a judge must grant that application. There are also certain crimes which may disqualify applicants from winning asylum, but do not disqualify them from withholding of removal.
Convention against Torture relief, commonly called CAT, is an extremely rare grant of protection from deportation that an immigration judge grants for individuals who fear torture in their home country. To qualify for CAT, an applicant must demonstrate a clear probability (more than a 5o% chance) that they will be tortured either directly by or with the acquiescence of the government of their country of origin. This is an extremely difficult legal showing to make, but this relief is available in removal proceedings.
Finally, if there is no other relief from deportation, most persons are eligible for, and should apply for, voluntary departure from the US. The judge may grant you the maximum time period to depart which is 120 days. Voluntary Departure avoids the legal impediments to return to the US imposed by deportation, and permits you the time and dignity to depart the US on your own prior to the last day of departure.
Voluntary departure is available to persons who are not deportable on aggravated grounds, who have the means to pay for their departure from the U.S., who agree to depart within a period of time granted by the Immigration Judge, and who can establish good moral character during the previous five-year period. Being prepared to answer any of the judge’s questions and explain any issues to the judge in an honest and straightforward way is critical to a successful request for voluntary departure.