EOIR IMMIGRATION COURT

Viles Law Firm has many years of experience in representing clients before the immigration court when they are in removal proceedings. Attention to detail is critical. Your lawyer must help you tell your story in a consistent and coherent manner. Different forms of relief (defenses to removal) are available before an immigration judge. We can help you identify the best form of relief and assist you in preparing the best case possible. Let us help you understand your rights. 

Removal proceedings are the government’s way of removing (deporting) certain classes of persons from the United States. The government can instigate removal proceedings against nonimmigrants, permanent residents, and denaturalized citizens.

Removal proceedings begin with the issuance of a Notice to Appear (NTA) which is served on the alien who is termed the Respondent. The NTA will list the alien’s name, charges, and court date. An experienced attorney should review the NTA for accuracy. 

Immigration court involves two types of hearings: Master Calendar Hearing and Merits or Individual Hearing. The Master Calendar Hearing is typically a meet and greet with the judge and government attorney so that the Respondent can discuss the accuracy of the charges on the NTA, explain the type of relief (defense) from removal the Respondent will be seeking, and when the next court date will be. Depending on the type of relief the Respondent is seeking, there may be multiple Master Calendar Hearings or, possibly, the judge will set the Respondent’s case for a merits hearing.

The Notice to Appear will list charges against the Respondent which the government alleges as grounds for expelling the Respondent from the United States. The various grounds of deportation and inadmissibility are detailed in the two sections below.

• Controlled Substance Offense. The only exception is for a one time only (single offense) conviction of 30 grams or less of marijuana for personal use.

• Crimes Involving Moral Turpitude (CIMT). The requirements are: (i) the term of imprisonment must be for one year or more; (ii) the crime occurs within 5 years after admission into the U.S.; or (iii) within 10 years of the date of admission into the U.S. if the immigrant was granted permanent residence through a U visa.

• Multiple Moral Turpitude Convictions. If an alien is convicted of two or more CIMTS if the offenses are not based on the same underlying scheme of criminal conduct. Confinement is not a requirement.

• Aggravated Felonies. The immigration definition of an “aggravated felony” is not the same as a standard criminal law.

• Firearm and Destructive Devise Convictions.

• Espionage, Sabotage, Treason, and Related Crimes.

• Domestic Violence. The conviction must occur after September 30, 1996, and the conviction must be for a crime of violence against a protected person, stalking, child abuse, child neglect, or child abandonment. Violence means the use, attempted use, or threatened use of physical force against the person or property of another.

• Failure to Register as a Sex Offender.

• Violation of a Protective Order. 

• High Speed Flight from an Immigration Checkpoint.

•  Failure to Register.

•  Falsification of Documents.

Adjustment of Status is a defense against removal when you are eligible to obtain a greencard either through a family petition or an employment based.  An alien (respondent) in removal proceedings may be the spouse, child, parent, or widow of a U.S. citizen who can sponsor the alien for a greencard. 

In order to be eligible for a 212(c) waiver, your attorney must show the court that you: 

• Entered a guilty plea to the crime before April 1, 1997.

• Have been a lawful permanent resident for at least 5 years.

• Are returning to a lawful, residence of at least 7 consecutive years.

• Are not subject to deportation or removal on grounds of terrorism or national security.

• Are not unlawfully in the U.S. because of a prior immigration violation.

• Have not been convicted of a firearms or aggravated felony offense for which you were incarcerated for more than 5 years.

• Are not currently outside the U.S.,  have not returned to the U.S. after having received an order of deportation or removal, or are in the U.S. without a legal entry (admitted or paroled).

To be eligible for cancellation of removal as a legal permanent resident, you must prove: 

• Have been a Lawful Permanent Resident (greencard) for at least 5 years at the time the application is filed.

• Continually resided in the U.S. for at least 7 years after admission is any status. Conviction of the criminal offense and/or issuance of the Notice to Appear stop the ticking of the clock on continuous residence (Stop time rule).

• Have not been convicted of an aggravated felony.

• Have not previously received cancellation of removal

Have family ties to the U.S. 

In order to succeed on a Cancellation of Removal Case, you must show the immigration judge that your positive equities are greater than your negative drawbacks.  Positive factors include:

• Hardship to applicant’s family if removal occurs.

• Family and social ties in the U.S.;

Evidence of rehabilitation.

• Educational and employment history.

• Proof of good moral character.
• Business ties.

• Property ownership.

• Community service and involvement.

• Payment of income taxes.

To be eligible for cancellation of removal as a legal permanent resident, you must prove you:

• Have been a Lawful Permanent Resident (greencard) for at least 5 years at the time the application is filed.

• Continually resided in the U.S. for at least 7 years after admission in any status. Conviction of the criminal offense and/or issuance of the Notice to Appear stops the ticking of the clock on continuous residence (Stop time rule).

• Have not been convicted of an aggravated felony.

• Have not previously received cancellation of removal.

• Have family ties to the U.S.

Success in a Cancellation of Removal case, requires you convince the immigration judge that your positive equities are greater than your negative drawbacks.  Positive factors include:

• Hardship to applicant’s family if removal occurs.

• Family and social ties in the U.S.

• For non-removable criminal convictions, evidence of rehabilitation.

• Educational and employment history.

• Proof of good moral character.

• Business ties.

• Property ownership.

• Community service and involvement.

• Payment of income taxes.

Persons without legal status in the U.S. are eligible for Cancellation of Removal as long as they have a U.S. citizen or greencard spouse, parent, or minor child who will suffer extreme or unusual hardship if the foreign national is deported. This relief will allow the foreign national to become a permanent resident. The foreign national applicant must:

• Have been continuously present in the U.S. for 10 years prior to submitting the application for cancellation of removal.

• Have no criminal history which would render him or her inadmissible.

• Have been a person of good moral character during the 10 year period.

• Be able to prove that his or her deportation would cause extreme and unusual hardship to a U.S. citizen or greencard holding spouse, parent, or minor child. 

VAWA allows for a person, who suffered physical and/or mental abuse at the hands of a U.S. citizen or permanent resident spouse, to obtain a greencard. VAWA cancellation applies to the non-lawful permanent resident spouses and of U.S. citizens or lawful permanent residents  who were subjected to battery (physical abuse) or extreme cruelty by the U.S. spouse or permanent resident. VAWA cancellation of removal also covers the children of the non-lawful permanent residents. 

An alien applying for VAWA Special Rule Cancellation of Removal must show that he or she has been battered or subjected to extreme cruelty by a United States citizen or a legal permanent resident (greencard holder) spouse.

 “Battery” in the immigration context is not as strong as in a state level criminal court. Battery can also include assault. Battery is an unwanted touching (e.g. hitting) whereas assault is making a person afraid of being hit. 

Abuse includes being physically abused, threatened with physical abuse, psychological or mental abuse, sexual abuse, financial abuse; has been physically present in the U.S. for at least 3 years before the date of applying for Special Rule Cancellation of Removal. 

The Special Rule Cancellation applicant must:

• not have been outside the U.S. more than 90 days during any single trip and not outside the U.S. for more than a total of 180 days for all trips combined unless the applicant can show that the absences were part of the abuse.

• be a person of good moral character during the 3 years of continuous physical presence. If the applicant did commit an act that is a bar to good moral character, we may be able to obtain a waiver if we can show that the act ;is not inadmissible.

• have not been convicted of an aggravated felony.

• will experience extreme hardship or that his or her child or parent would suffer extreme hardship if removed from the U.S.