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 origina 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. For further analysis of the claim, please see “Asylum and Withholding of Removal.” (Link “Asylum and Withholding of Removal” to the other page under Visa “Asylum and Withholding of Removal”)
Cancellation of Removal for Permanent Resident– Eligibility Requirements To qualify for cancellation of removal, you must show that:
Cancellation of Removal – Common Issues
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
Cancellation of Removal – Bottom line
If you have a green card but now have to go a deportation hearing to Immigration Court, Cancellation of Removal may help prevent your deportation. If you are wondering whether cancellation of removal might prevent you from being deported, please call me. I’d be happy to meet with you to discuss your immigration case.
Cancellation of Removal for Non Permanent Resident – Eligibility Requirements
To qualify for cancellation of removal, you must show that:
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 to seek for further assistance.
The requirements to apply for and receive a 212c waiver include:
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) 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 rehabilitee 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.
Waiver is 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.
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) 5a/ (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) 5a/ 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) 5a/ 5aa/ 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”
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.
Inapplicability of Fraud Waiver to CIMT conviction for marriage fraud. Matter of Tima, 26 I&N Dec .
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, simply call 408.418.4648 or 408.459.5858 today!