Removal Defense

  • Asylum and Withholding of Removal;
  • Cancellation of Removal;
  • 212(c) Waiver;
  • 212(h) Criminal Waivers of Criminal Inadmissibility: waiver for prostitution, crimes more than 15 years old, crimes of moral turpitude, and simple possession of marijuana;
  • 212 (i) and 237(a)(1)(H) Fraud Waivers: Waiver Authorized for Certain Misrepresentation;
  • Motion to Suppress: If an individual was detained by law enforcement or immigration in violation of constitutional due process, it might be possible to request the Immigration Court to suppress the evidence and to terminate Immigration Court proceedings;
  • Motion to Terminate: If the charges on the government’s Notice to Appear are not correct, an applicant may be able to file a Motion to Terminate asking the Immigration Court to terminate proceedings;
  • Motion to Recalendar: Sometimes it may be necessary to recalendar the case so that we may be able to raise certain reliefs for you
  • Application for Permanent Residence: If after the removal order, you become eligible for permanent resident status, it is important to reopen the case and file the application for Permanent Residence in front of the judge.


Asylum and Withholding of Removal:

An asylum seeker must establish that he or she is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, their country of origin because of past persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42)(A); 8 C.F.R. § 1208.13(b).

It is important to present detailed information to delineate your claim that is on account of one of the statutorily prescribed grounds and persecution. Only with effective legal representation, can your asylum claim be meeting the stringent legal standards.

Asylum and Withholding of Removal can be filed affirmatively with the Asylum Office or defensively with the Immigration Judge during the removal proceeding.

Cancellation of Removal

Cancellation of Removal for Permanent Resident– Eligibility Requirements To qualify for cancellation of removal, you must show that:

  • 5 years of green card status: You have had your green card for at least five years;
  • 7 years continuous presence in the U.S.: You have lived in the United States continuously for seven years after being admitted in any status; and
  • No aggravated felony convictions: You have no criminal convictions, which can be classified as “aggravated felonies”


Cancellation of Removal – Common Issues

  • Fraud: If you acquired your green card through fraud or misrepresentation, you aren’t considered to have been “lawfully admitted for permanent residency” and therefore, don’t qualify for cancellation of removal;
  • “Time Stop” Rule: continuous presence is considered to have ended when either the government serves a Notice to Appear, the charging document that starts deportation or removal proceedings, or the green card holder commits certain criminal offenses;
  • The five-years period of permanent residency may include time after a deportable criminal offense and after the government has issued a Notice to Appear, initiating deportation proceedings, and while the green card holder is waiting for a merits hearing in Immigration Court.


Cancellation of Removal – Discretionary Factors
To win a case for cancellation of removal, you must persuade an Immigration Judge that your positive equities outweigh any adverse factors. According to the Board of Immigration Appeals, common positive and negative equities include:

Positive Equities for Cancellation of Removal

  • Family ties in the United States
  • Residence of long duration in the United States, especially when begun at an early age
  • Evidence of hardship to the applicant and family if deportation occurs
  • Proof of rehabilitation if a criminal record exists
  • Evidence of good moral character
  • Service in the U.S. military
  • Employment history
  • Business ties or property
  • Community service


Cancellation of Removal for Non Permanent Resident – Eligibility Requirements

To qualify for cancellation of removal, you must show that:

  • Ten Years in the U.S. You have been continuously physically present in the United States for at least ten years. The 10-year period is measured from the date of entry until the date that the Department of Homeland Security issues a Notice to Appear in Immigration Court. A single absence of 90 days or a several absences totaling 180 days will interrupt the continuous physical present necessary for cancellation of removal;
  • Good Moral Character. You have been a person of good moral character during that 10 year period of time;
  • No convictions that make you inadmissible or deportable. You haven’t been convicted of certain criminal offenses that would render you inadmissible or deportable; and
  • “Exceptional and extremely unusual hardship.”Your possible deportation would cause “exceptional and extremely unusual hardship” to your lawful permanent resident or U.S. citizen spouse, child or parent.


What is “exceptional and extremely unusual hardship”?

Plenty of cancellation of removal cases have been denied on the grounds that the applicant have shown that their deportation would cause hardship but that the hardship doesn’t meet the standard of “exceptional and extremely unusual hardship.”

To meet this standard, you must show that your deportation would cause your child, spouse or parent to suffer a hardship, which would be substantially worse than the hardship normally expected from deportation to an underdeveloped country. Mere economic hardship wouldn’t qualify under this restrictive standard.

Bottom line on Cancellation of Removal

If you have an upcoming hearing in Immigration Court before an Immigration Judge and you don’t have a green card / permanent resident status, cancellation of removal might protect your from deportation. If you think you might have a case for cancellation of removal or have questions about it, please call our office for further assistance.


212(c) Waiver:

The requirements to apply for and receive a 212c waiver include:

  • You pled guilty to the crime prior to April 1, 1997
  • You have been a lawful permanent resident for at least 5 years
  • You are returning to a lawful, unrelinquished residence of at least 7 consecutive years
  • You are not subject to deportation or removal on the grounds of terrorism or national security
  • You are not unlawfully in the US due to a previous immigration offense
  • You have not been convicted of a firearms offense or an aggravated felony offense for which you served over 5 years


You are ineligible to receive a 212c waiver if you have departed and are currently outside the US, you have illegally returned after deportation or removal, or you are present in the US without having been admitted or paroled.

It is important to note that the 212c waiver is a discretionary. Therefore, even if you are eligible to apply for a 212c waiver, the Immigration Judge will decide on a case-by-case basis whether or not to grant you this relief. The Judge will look closely at the balance of positive factors versus negative factors in your application. Positive factors include family ties in the US, long time residence in the US, hardship to you and your family if you were deported, property ownership, business ties, demonstrated value and service to the community, genuine rehabilitation and evidence that you are person of good character Negative factors can include the nature, seriousness and recency of your criminal record and evidence that you are a person of bad moral character.


212(h) Criminal Waivers of Criminal Inadmissibility

212(h) waiver is waiver for prostitution, crimes more than 15 years old, crimes of moral turpitude, and simple possession of marijuana.

Under 212(h) waiver, there are two different thresholds, one only needs to prove rehabilitation and the other one must also prove extreme hardship to a parent, spouse, son or daughter who is a US citizen or Legal Permanent Resident of the United States. Therefore, understanding the requirement and the kind of inadmissibility can be detrimental in applying for such a waiver.

Waivers are a carefully crafted process, it requires detailed information and thoughtful preparation. It is important that you retain a competent attorney to present the information in a concise yet compelling manner to present in court.


212(i) and 237(a)(1)(H) Fraud Waivers

This waiver is available to individuals who gained an immigrant visa or adjustment of status by fraud or misrepresentation. Only a person in removal proceedings could apply for it.

Section 237 reads:

(a) Classes of Deportable Aliens.-Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: 

(1) Inadmissible at time of entry or of adjustment of status or violates status.- 

(A) Inadmissible aliens.-Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable…

(H) WAIVER AUTHORIZED FOR CERTAIN MISREPRESENTATIONS. — The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 212(a)(6)(C)(i), whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who-

 (i) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and

 (II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 212(a) which were a direct result of that fraud or misrepresentation.

 (ii) is a VAWA self-petitioner.

A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.”

To qualify for 237(a)(1)(H) an applicant for this waiver

(1) must have a qualifying relative – the spouse, parent, a child who is US citizen or permanent resident;
(2) must have a possessed an immigrant visa or “equivalent document,” – not available for non-immigrants and individuals who entered without an inspection;
(3)”otherwise ” admissible “at the time of admission,”
(4) deserves favorable exercise of discretion.

Relevant inquiries for grant of discretionary relief”

  • Age when the misrepresentation was committed
  • Is the applicant genuinely remorseful
  • Length of residence of the applicant in the United States;
  • Applicant’s  education and employment history;
  • Property or business ties;
  • Service and value of the applicant to the American community; and
  • Good moral character,
  • Criminal history.

Again, no need to demonstrate hardship!

237(a)(1)(H) waives not only the exclusion ground but also the underlying fraud and renders the waiver recipient an LPR status (green card) from the time of his initial entry.


Applicability of section 237(a)(1)(H) waiver

Inapplicability of Fraud Waiver to CIMT conviction for marriage fraud. Matter of Tima, 26 I&N Dec .

Motion to Suppress: If an individual was detained by law enforcement or immigration in violation of constitutional due process, it might be possible to request the Immigration Court to suppress the evidence and to terminate Immigration Court proceedings.

Motion to Suppress aims to suppress actual evidence that was obtained illegally by the government, therefore terminating the proceeding. A motion to suppress may be a valid defense to removal in your immigration proceedings if law enforcement or Immigration and Customs Enforcement (ICE) officials treated you in an unconstitutional or otherwise illegal manner in detaining you. This requires detailed factual analysis that lead to the unlawful detention and illegal obtaining of the evidence. Please contact the attorney for an assessment whether a Motion to Suppress shall be filed in your case.

If you are in a deportation proceeding or if you are detained, we can help you effectively fend against the proceeding and raise reliefs with the Immigration Judge to fight for your rights. To gain more information, contact our law office today!

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