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Removal Proceeding Defenses & Remedies

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Feb 25, 2019)

What defenses are available to nonimmigrants in a removal proceeding?

To start a removal proceeding, the U.S. Immigration and Customs Enforcement (ICE) will serve you a Notice to Appear (NTA), which will contain the charges of removability against you.  These charges would contain a combination of facts and legal conclusions.  You or your counsel should request a reasonable opportunity to review the facts in connection with the alleged violations.

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Sometimes, the allegations of removability are complex and would turn on facts that you can legitimately dispute. In a removal proceeding, the government carries the burden of proof, and you have the right to put them to task. However, you should do so not because you can but because you have a legitimate dispute with the government's allegations. When you dispute the charges, the court will schedule you for a merit hearing, where ICE would have to present evidence supporting your removability and you will have the opportunity to dispute ICE's assertions or request other relief.

What kind of immigration benefits are available to nonimmigrants in a removal proceeding?

  • Adjustment of Status. Nonimmigrants in removal proceeding, who are beneficiaries of approved family-based or employment-based immigration petitions, may request that the immigration judge adjust their status to that of a permanent resident.  See Adjustment of Status.
     
    Family-based petitions, filed on the basis of marriage to a U.S. citizen or permanent resident, must show by clear and convincing evidence that the marriage is bona fide and include a request for an exemption of the general prohibition on such petitions filed while the beneficiary is in removal proceeding. See Immigrant Visas for Spouses of U.S. Citizens and Immigrant Visas for Spouses of Permanent Residents.
     
    If an immigration petition is filed on your behalf and is pending before the USCIS, you may request that the immigration court grant you a reasonable extension of time until the USCIS decides the petition. Note, however, that initiation of a removal proceeding does not suspend the accumulation of days of unlawful presence. Thus, you may become subject to the 3- or 10-year admissibility bar, during the immigration court proceeding, which may affect your ability to adjust status.
     
    Undocumented immigrants, who have illegally entered the United States without inspection, generally cannot file for adjustment of status.  Adjustment of Status Alternatives for Undocumented Immigrants.
  • Cancellation of Removal. Cancellation of removal is available to nonpermanent residents who have been physically present in the United Sates for a number of years (depending on circumstances), are people of good moral character, and whose removal would work “extremely unusual hardship” to their citizen or permanent resident spouse, parent, or child. See Cancellation of Removal.
  • Cancellation of Removal for Battered Spouses and Children. This cancellation of removal is available to spouses and children, who have been battered or subjected to extreme cruelty by certain relatives who are or were citizens or permanent residents.  See Cancellation of Removal for Battered Spouses and Children.
  • Asylum. Asylum is available to qualified non-citizens who have a well-founded fear of future persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion.  See Asylum.
  • Withholding of Removal. Withholding of removal is a temporary relief which withholds the removal of qualified non-citizens, found to be removable, to a country where they may face a threat to their life or freedom on the basis of race, religion, nationality, membership in a particular social group, or political opinion.  See Withholding of Removal.
  • Convention against Torture (CAT) Protection. CAT Protection is a temporary relief which withholds the removal of non-citizens, found to be removable, to a country where they may be subjected to torture, either directly by government officials or indirectly with the consent or acquiescence of government officials.  See CAT Protection.
  • Temporary Protected Status (TPS). As its name suggests, Temporary Protected Status is a temporary, nonimmigrant status, which is accorded to nationals of particular countries, which are stricken by natural disaster, war, or armed conflict.  See Temporary Protected Status.
  • Prosecutorial Discretion. Nonimmigrants in removal proceeding may request that the ICE attorney, who represents the government in the removal proceeding, to favorably exercise his or her prosecutorial discretion in order to allow a particular relief. Making such a request is not as simple as it sounds and obtaining substantive relief through exercise of prosecutorial discretion would be rare. Nonetheless, nonimmigrants in removal proceeding may be able to make a compelling presentation and argument for obtaining temporary or permanent relief in appropriate cases.  See Prosecutorial Discretion.
  • Voluntary Departure. Voluntary departure is the government's consent and permission to allow you depart the United States voluntarily instead of being deported and being saddled by the consequences of deportation.  See Voluntary Departure.

Related Topics:

Adjustment of Status

Cancellation of Removal

Cancellation of Removal for Battered Spouses & Children

Asylum

Withholding of Removal

Convention against Torture (CAT) Protection

Temporary Protected Status (TPS)

Prosecutorial Discretion

Voluntary Departure

Removal Proceeding Defenses & Remedies for Undocumented Immigrants

 

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