defense

Mr. Slepian’s roots are within removal/deportation defense, as he has been litigating removal matters since he was admitted to the New York State Bar. Removal Proceedings may be instituted against a non-citizen due to a wide variety of reasons.

Perhaps the most common reason that removal proceedings are instituted is due to the overstay of a nonimmigrant (i.e., temporary) visa. In addition to overstaying a period of authorized stay (usually noted in one’s I-94 Admission/Departure Record – given upon their admission to the U.S. and placed in their passport), a violation of a provision of a particular visa can trigger the institution of removal proceedings.

Even those that are U.S. Lawful Permanent Residents can be deported from the U.S. Permanent Residents typically find themselves in Removal Proceedings in one of two situations: Either (1) they have committed a criminal act and are deportable due to the crime/conviction; or (2) they have remained outside of the U.S. for too long and have been found to have “abandoned” their Permanent Resident status. In either scenario, there may be relief from removal available (discussed below).

The last category of persons who are commonly in Removal Proceedings are those who entered the U.S. without inspection (EWI). Relief from removal is limited for those who entered EWI. However, recently the I-601A Provisional Waiver was created to ease the hardships to U.S. Citizens with Immediate Relatives (spouses, parents, children) who have entered without inspection (explained in further detail below).

Depending on the reason for the institution of proceedings, potential relief from removal (i.e., alternatives to deportation) varies.

Types of Relief from Removal:

Adjustment of Status (AOS)

AOS allows a noncitizen who has been admitted and inspected to the U.S. and who is otherwise admissible to the U.S. to Adjust their Status to that of a U.S. Lawful Permanent Resident if they have an immediately available visa number. Visa numbers can be provided via family or an employer; the length of time one must wait for visa availability depends on the family relationship or the experience of the employee. However, often only a family-based Immediate Relative Petition providing an immediately available visa number can provide relief from removal, as eligibility for adjustment via any other immigrant visa requires that the applicant be in valid status at the time of filing. Of course, if one was in valid status, they would not likely be in removal proceedings.

*Please note that in order to AOS, one generally must have been admitted and inspected to the U.S. In the past, those who have entered EWI yet who have available visa numbers through Immediate Relatives had to request voluntary departure from the U.S. and then, could apply to return to the U.S. via Consular Processing (commonly applied for with a waiver for unlawful presence in the U.S.). With this old procedure, the Consular Processing and Waiver review process could take a year or more, which caused great strain and hardship to the U.S. Citizen family members. As of March 4, 2013 USCIS made available an I-601A Provisional Waiver which now allows those who entered EWI to apply for the waiver (if necessary) while remaining in the U.S. The new procedure permits the Immigration Courts to administratively close (i.e., “pause”) a removal proceeding for an I-601A applicant. If the I-601A is approved by USCIS, the Applicant can then request dismissal of the removal matter so that they may travel to their country of origin to complete the consular processing (which can now be completed in a matter of days as opposed to months, thus limiting the family separation and hardship).

Cancellation of Removal (formerly Immigration and Nationality Act section 212(c))

There are two types of Cancellation of Removal: One for Lawful Permanent Residents and one for non-permanent residents.

Cancellation of Removal for Certain Lawful Permanent Residents: To apply for this form of relief, the Respondent/Applicant must have been lawfully admitted for permanent residence for five years; must have resided in the U.S. continuously for seven years after having been admitted in any status; has not been convicted of an ‘aggravated felony’; and warrants a favorable exercise of discretion. Cancellation of Removal can only be granted once; it is essentially a second chance to remain in the U.S. If statutorily eligible, the Immigration Judge will weigh the Respondent/Applicant’s positive equities against the negative equities in determining whether the Respondent/Applicant deserves a second chance to remain in the U.S.

Cancellation of Removal for Certain Nonpermanent Residents: To apply for this form of relief, the Respondent/Applicant must have been physically present in the U.S. for a continuous period of not less than ten years immediately preceding the date of the application; must have been a person of good moral character for ten years; has not been convicted of an offense under Immigration and Nationality Act sections 212(a), 237(a)(2) or 237(a)(3); establishes that removal would result in exceptional and extremely unusual hardship to his/her U.S. Citizen or Lawful Permanent Resident spouse, parent or child; and warrants a favorable exercise of discretion. This form of relief is among the most difficult to obtain due to the extremely high burden on the Respondent/Applicant to prove the requisite level of hardships.

Asylum/Withholding/CAT

Asylum: To apply for Asylum, a Respondent/Applicant must file Form I-589 and show a reasonable fear of returning to their country of origin due their race, religion, nationality, political opinion, or membership in a particular social group. As asylum application may be filed affirmatively with USCIS (if the Applicant is in lawful status or otherwise, not in removal proceedings) or defensively (before the Immigration Court – after the institution of removal proceedings). Asylum must be requested within one year of an Applicant’s arrival in the U.S. unless the Applicant demonstrates the existence of changed circumstances which materially affect the Applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing the application. If Asylum is granted, the Asylee may be able to apply for U.S. Lawful Permanent Residence after one year.

Withholding of Removal: To apply for Withholding of Removal, a Respondent/Applicant must file Form I-589 (same Form for Asylum). Withholding of Removal is similar to Asylum in that it requires a fear of returning to one’s country of origin based on race, religion, nationality, political opinion, or membership in a particular social group. The difference, however, is that withholding of removal requires a showing that it is “more likely than not” that the Respondent/Applicant will be persecuted upon their return to their home country (as opposed to a showing of reasonable fear for Asylum). Withholding of Removal, however, does not have a filing deadline, so a Withholding of Removal Application may be filed at any time. Another key difference between Asylum and Withholding of Removal is that one cannot Adjust their Status (i.e., become a Lawful Permanent Resident) via a grant of Withholding of Removal (unlike Asylees, who may apply for Permanent Residence after one year).

The United Nations Convention Against Torture (CAT): To apply for CAT, a Respondent/Applicant must show that it is more likely than not they will be subject to torture upon removal. Torture is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind . . .”

Withdrawal of app for admission

A common scenario in Immigration Court is the noncitizen who has applied for admission to the U.S. but who is deemed inadmissible. In some scenarios, when inadmissibility has been established, the Respondent may seek to “withdraw their application for admission to the U.S.”. That is, the Respondent may seek to return to their country of origin without a formal finding of inadmissibility or Order of Removal/Deportation, so that they may avoid an Order of Removal and potentially return to the U.S. in the future (after their inadmissibility issue(s) have been addressed).

Deferred Action for Childhood Arrivals

August 15, 2012 marked the first day for the Deferred Action for Childhood Arrivals (DACA) program. Under DACA, the Applicant must have been under 31 as of June 15, 2012; must have arrived in the U.S. before their 16th birthday; must have continuously resided in the U.S. from June 15, 2007 to the present; must have been physically present in the U.S. on June 15, 2012 as well as at the time of filing for DACA; entered without inspection before June 15, 2012 or their immigration status expired on or before June 15, 2012; must be in school or have already graduated at the time of application (or are an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces; and cannot have been convicted of a felony, significant misdemeanor, or three or more misdemeanors (and do not otherwise pose a threat to U.S. national security or public safety). Persons in removal proceedings who apply for DACA are generally able to have their removal proceedings “administratively closed” (i.e., “paused”).

Voluntary Departure

Voluntary Departure permits a Respondent in Removal Proceedings to depart the U.S. without having an Order of Removal/Deportation issued against them. There are two different types of voluntary departure: Voluntary Departure prior to completion of removal proceedings and Voluntary departure at the conclusion of proceedings.

The Immigration Judge may grant pre-conclusion VD up to 120 days if the Respondent requests VD prior to or at a master calendar hearing at which the case is initially set for a merits hearing, the respondent requests no other relief, the respondent concedes removability and waives appeal, and has not been convicted of an aggravated felony or otherwise deportable under the security and related provisions of the Immigration and Nationality Act.

At the conclusion of removal proceedings, the Immigration Judge may grant no more than 60 days VD for respondents who meet the following conditions: Must be physically present in the U.S. for at least one year prior to service of the Notice to Appear (which instituted the removal proceedings); must be a person of good moral character for at least five years preceding the VD application; must not be deportable as an aggravated felon or terrorist; must establish by clear and convincing evidence the ability to leave at their own expense and the intent to do so; and must have the financial ability to post a bond designated by the Immigration Judge within five days of the Judge’s Order.