Deportation

INA 212(a)(7)(A)(i)(i) Expedited Removal

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INA 212(a)(7)(A)(i)(i) Expedited Removal

When applying for entry to the United States, a foreign national in possession of a valid visa must demonstrate to the CBP officer at the port of entry that they are eligible to enter in the visa classification requested.  For example, a B2 tourist must demonstrate that they will return home after their period  of authorized stay, have sufficient funds to cover their trip without working, and actually be coming for a tourist purpose.  An H1B worker must show that he or she is truly coming to work for their petitioning employer and have not previously violated their immigration status.

To determine if the applicant is eligible for entry, they may search the applicant’s luggage, phone, email, confirm hotel reservations, call the potential employer or do any other investigation deemed necessary.  Upon conclusion, if the CBP officer does not believe the visa holder is eligible for entry under the requested classification then he will cancel the applicant’s visa which renders the applicant inadmissible under INA 212(a)(7)(A) or INA 212(a)(7)(B).  Then CBP may decide that the applicant’s actions warrant removal from the US and will order the applicant removed and barred from entry for 5 years.

Most our of clients who encounter this problem or potential problem do not seek our help until after the removal order is issued.  In some cases, there are methods for getting the removal order rescinded and in others, a waiver may be a possibility.

In 2020, we were contacted by a potential client who was a frequent traveler to the US who used a B1/B2 for entry.  She always entered for a business purpose which was to visit certain business contacts related to her foreign business enterprise.  She never worked or conducted business in the United States.  Unfortunately, during her latest attempted entry, CBP searched her phone and based on some files located therein, believed that her actions constituted unauthorized employment.  CBP cancelled her visa, removed her from the country and instructed her to obtain a work visa for future entries to the US.  When she described her previous actions in the US, we believed that it did not constitute employment nor was a work visa required.  We helped her gather evidence to prove her innocence of CBP’s accusations and we were able to get the removal order rescinded so she could continue her business trips as done before.

In 2021, we were contacted by potential client who applied for entry as an H4 visa holder.  She had plenty of evidence that her husband was abiding by the terms of his H1B visa and that they had a genuine marriage.  However, she was previously in the US on a student visa and CBP asked her many questions regarding her previous OPT employment.  CBP discovered that her OPT employer was on a list of fraudulent employers that gave out fake employment letters for a fee.  CBP cancelled her H4 visa, removed her from the country, and barred her for 5 years.  When she described her work with her previous OPT employer, we felt that we could demonstrate that she was the victim of OPT fraud, not the perpetrator.  We helped her gather evidence to prove her innocence of CBP’s accusations and we were able to get the removal order rescinded so she could reunite with her husband in the US with an H4 visa.

If you have a similar case or would like to avoid this potential problem, contact our office through our website or give us a call at 305 515 0613. We look forward to helping you win your case like we have for thousands of other clients.

Voluntary Departure vs. Removal

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My husband just received a Notice to Appear (NTA) and is being deported. I heard that he can get voluntary departure and come right back in. Is that true?

It is possible. However, if your husband is removed, he will be barred from entering the US for ten years unless he can obtain a waiver. If he is qualified to obtain voluntary departure there will be no bar for being removed. However, he may still be subject to other grounds of inadmissibility. For example, he may be subject to the 3/10 year bar if he accrued more than 180/365 days of unlawful presence. He may also be inadmissible due to previous criminal violations or for fraud/misrepresentation if he fraudulently entered the country.

Voluntary departure will not cure any grounds of inadmissibility other than the 10 year removal bar. It is very important that he be well represented in immigration court if you want him to be able to return or remain in the US.

US Department of State Lists Eight Countries as Religious Freedom Violators

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On May 11, 2009 the US Department of State designated Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan as “countries of particular concern” for religious freedom violations.  While this determination was made in connection with any immigration laws, it can be used to support certain types of immigration petitions where the applicant has suffered religious persecution.

Religious persecution can be an element of a political asylum petition, j-1 visa waiver petition as well a defense to removal (deportation).

Read the full report here.

Cancellation of Removal for Nonpermanent Residents

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Cancellation of removal for nonpermanent residents allows foreign nationals in the US who are currently in removal proceedings to remain in the US an obtain permanent residency (green card).  Removal may be canceled if the application meets the following four conditions:

1.  The applicant is currently in removal proceedings because he or she is inadmissible or deportable;

2.  The applicant has been physically and continuously present in the US for ten years;

3.  The applicant has had good moral character for that period of time;

4.  The applicant must not have been convicted of certain criminal offenses; and

5.  The applicant must demonstrate that removal would cause exceptional and extremely unusual hardship to his or her lawful permanent resident (LPR) or US citizen spouse, child or parent.

An applicant is barred from obtaining cancellation of removal if:

1.  He of she has previously been granted cancellation of removal, suspension of deportation or other relief under INA Section 212(c);

2.  He or she has persecuted others or is inadmissible under security or related grounds;

3.  He or she entered as a crewman after June 30, 1964;

4.  He or she was a J-1 visa holder for the purpose of graduate medical training; and

5.  J visa holders who are subject to INA Section 212(E) and have not completed the two year home residency requirement nor have received a J-1 visa waiver.

If the judge grants the applicant’s request for cancellation of removal, then the applicant will be able to adjust to lawful permanent resident (green card).  If the judge denies the applicant’s request for cancellation, he will enter an order of removal and the applicant will be removed from the US

Cancellation of Removal for Lawful Permanent Residents

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Cancellation of removal is a form of discretionary relief available to all lawful permanent residents (LPRs) who are in removal proceedings.  Removal may be cancelled if the application meets the following four conditions:

1.  The applicant has been an LPR for at least five years;

2.  The applicant has resided continuously in the US for seven years after having been admitted in any status;

3.  The applicant has not been convicted of an aggravated felony; and

4.  The applicant has not previously received a grant of cancellation or suspension of deportation.

Cancellation of removal is only available in immigration court before a judge.  Also, because this form of relief is discretionary, the application must demonstrate to the judge why he should exercise his discretion in favor of the applicant.

Positive factors include family ties in the US, residence of long duration in the US, evidence of hardship to the applicant and family if removal occurs, service in the US military, employment history, business and property ties, evidence of value and service to the community, proof of genuine rehabilitation if applicant has a criminal record and any other evidence of applicant’s good character.

Negative factors include the nature and underlying circumstances of the grounds of removal, the presence of additional immigration violations, the existence of a criminal record and any other evidence of bad character or undesirability.

If the judge grants the applicant’s request for cancellation of removal, then the judge is effectively forgiving the basis of the removal proceeding and the application will retain his or her permanent residency and can remain in the US.  If the judge denies the applicant’s request for cancellation, he will enter an order of removal and the applicant will be removed from the US and will lose his or her LPR status.