Removal

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.

Widows of US Citizens Will Be Granted Deferred Action

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US Department of Homeland Security Secretary Janet Napolitano recently announced that widows of US Citizens will be granted deferred action for two years.  Previously, foreign nationals who married US citizens via the Marriage Green Card but whose US citizen spouse died before they were able to obtain benefits were not eligible for immigration benefits.  The DHS will now recognize that these widows along with their unmarried children under 18 years of age the right to remain in the US and will defer initiation of removal proceedings, cancel current removal proceedings and will accept applications foe humanitarian reinstatement for those who have had petitions revoked.

These new benefits apply to all spouse of US citizens and their unmarried children under 18 years who were married for less than two years at the time of the US citizen spouse’s death.  In addition, the widows may be granted work authorization provided they may show economic necessity.  The DHS is encouraging the legislation of new laws which would allow these widows the ability to apply for permanent residence as well.

See the entire press release 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.