7 Steps an Immigrant Can Take When Facing Removal
The government can initiate proceedings to remove (or deport) noncitizen immigrants from the United States under several circumstances. The most common are:
The immigrant entered the United States unlawfully and therefore does not have the documentation that is required to live in the United States
The immigrant lawfully entered the United States on a visa but remained after the visa expired
The immigrant is a lawful permanent resident but violated a condition of holding a green card
Removal proceedings include deportation proceedings, but not all immigrants who are removed from the United States are deported. An immigration lawyer at Arshakyan Law can explain the different procedures and rights that apply to different kinds of removal proceedings.
If you are facing removal, here are 7 steps you might be able to take:
1. Determine Whether You Are a Citizen
Citizens cannot be deported. Most undocumented immigrants are not citizens, but occasionally, an immigrant does not realize that he or she has a valid claim to be an American citizen.
If you were born in the United States (including Puerto Rico), you are an American citizen even if your parents moved you to another country during your infancy. Finding a birth certificate or other proof of your place of birth should help you avoid removal under those circumstances.
If you were not born in the United States, you might still be a citizen if:
One of your parents is a citizen and lived in the United States prior to your birth for the time periods required by law (in some cases, a grandparent’s citizenship might also help you qualify as a citizen)
One of your parents was naturalized as a citizen while you were under the age of 18 and living in the United States as a lawful permanent resident, even if you later left the country
You were present in the United States before the age of 5 and your parents are unknown
Determinations of citizenship are fact-intensive. An immigration lawyer at Arshakyan Law can help you investigate the facts and determine whether you might have a legitimate claim to U.S. citizenship.
2. Apply for Naturalization (Citizenship)
Immigrants cannot generally apply for citizenship unless they are lawful permanent residents (green card holders). However, green card holders who are accused of violating a condition of permanent residence may be able to avoid removal by applying for naturalization.
Permanent residents who are facing removal need to establish exceptional circumstances that persuade an immigration judge to stop the removal proceedings while naturalization proceedings are pending. An immigration attorney at Arshakyan Law can help you determine whether humanitarian factors or exceptional circumstances exist that will help you avoid removal.
You might have difficulty showing that you are eligible for citizenship if your removal is based on a criminal conviction. However, if the conviction is old, you have had your green card for several years, and you have stayed out of trouble since the conviction was entered, you might persuade a judge that you are eligible for naturalization.
3. Challenge Criminal Convictions
Lawful permanent residents most often face removal proceedings because they have been convicted of a crime. The best way to avoid removal is to avoid a conviction. A green card holder should seek legal advice before pleading guilty or no contest to any criminal charge.
If you have already been convicted, you should get legal advice about the possibility of reopening the conviction. Sometimes convictions can be dismissed or amended to crimes that do not require removal.
4. Defeat the Grounds for Removal
If you have a green card and are facing removal, you have the right to a hearing. At that hearing, the government must prove that you violated the conditions of your green card. An immigration lawyer at Arshakyan Law can help you challenge that proof.
The most common violations involve criminal convictions. Not all convictions result in deportation, but aggravated felonies, many “crimes of moral turpitude,” most drug crimes, and crimes resulting in actual incarceration of more than 180 days can lead to removal proceedings.
You may be able to challenge the government’s contention that your conviction was for an aggravated felony or a crime of moral turpitude. Those terms have specific definitions that immigration authorities do not always apply correctly. Your lawyer will need to gather documents that show the specific crime of conviction before making a legal argument on your behalf.
If your conviction occurred before 1996, you may also be eligible for a section 212(c) waiver. An immigration attorney at Arshakyan Law can tell you whether you might qualify.
5. Apply for an Adjustment of Status
Even if you do not have a green card, you may be able to avoid removal by seeking an adjustment of status. If you are successful, you will receive a green card that allows to live as a permanent resident. The usual grounds are:
You married a US citizen
You have a child with a US citizen
Your parent is a US citizen
The application for an adjustment of status usually needs to be filed by your citizen relative. An immigration lawyer at Arshakyan Law can help with the paperwork.
6. Seek Cancellation of Removal
If you do not have a green card, you might be able to avoid removal by proving that:
You have lived in the United States for at least 10 years
You have displayed good moral character
Your child, parent, or spouse (who is either a citizen or a lawful permanent resident) will experience extreme hardship if you are removed
However, if you were battered or abused by a spouse who is a U.S. citizen, you may pursue cancellation of removal even if you have only lived in the United States for three years.
7. Apply for a Refugee Waiver
Immigrants who do not have a green card may be able to apply for a refugee waiver. You would need to establish that you fled your country to avoid oppression or human rights violations, or that other humanitarian reasons make removal inappropriate.