DEPORTATION AND REMOVAL PROCEEDINGS LAWYER

• ASYLUM

Asylum may be granted to individuals who have been persecuted or who fear future persecution in their home country due to one of the following grounds:

• Race;
• Nationality;
• Religion (religious persecution, such as against Indonesian Christians & members of the Baha’i faith in Iran);
• Political belief or opinion, and/ or;
• Membership in a Particular Social Group.

• Affirmative Asylum Application

An Affirmative Asylum application is filed with USCIS before an applicant is issued a Notice to Appear and placed in Removal Proceedings. Affirmative Asylum applicants are interviewed by an Asylum Officer. If the Asylum Officer does not approve the application, the case is referred to Immigration Court and the applicant is placed in Removal Proceedings.

• Defensive Asylum Application

A Defensive Asylum application is filed with USCIS after an applicant is issued a Notice to Appear and is placed in Removal Proceedings. A Defensive Asylum application is litigated before an Immigration Judge at an Individual or Merits Hearing.

• 1 Year Rule

You MUST* file for Asylum within 1 year of your last entry into the U.S. This rule was enacted by Congress to prevent fraud. Congress reasoned that if an individual is truly afraid to return home, he or she should be filing for Asylum immediately upon arriving in a safe heaven, i.e., the United States. One year is supposed to give potential applicants ample time to file the appropriate forms and evidence. In practice, however, there are many reasons that individuals fail to file within the 1 year deadline and there exist statutory exceptions to the 1 year rule.

Proving your eligibility for an exception to the 1 year filing deadline is very difficult. It is thus extremely important that you file within a year of entering the United States if you have a genuine fear that you will be persecuted if you are forced to return to your native country.

*How do I calculate the 1 year for an asylum application? Here is a simple example of how to calculate the 1 Year Asylum filing deadline:

Date of entry into U.S. = May 18, 2016

1-Year Asylum Deadline = May 17, 2017

• WITHHOLDING OF REMOVAL

Withholding of Removal or Deportation can be granted for reasons similar to Asylum. There is no 1-year bar limiting a judge from granting an order of withholding, however, the standard of proof is higher than Asylum. Unlike individuals granted Asylum, an individual granted Withholding of Removal cannot apply for Permanent Residence and can possibly be deported to a different country than the home country or the home country if conditions improve.

Torture = severe pain or suffering (physical or mental) that is intentionally inflicted by or at the instigation of or with the consent or acquiescence of a public official, or other person acting in an official capacity.

• WITHHOLDING UNDER THE CONVENTION AGAINST TORTURE (CAT)

CAT protection is found in Article 3 of the United Nations Convention Against Torture Treaty, (“CAT”). The purpose of this international treaty obligation is to protect aliens from torture in their home countries if it is more likely than not that they will face torture.

Torture = severe pain or suffering (physical or mental) that is intentionally inflicted by or at the instigation of or with the consent or acquiescence of a public official, or other person acting in an official capacity.

The Fraud Waiver was created by Congress to waive deportation for immigrants who committed fraud but who have significant family ties to the United States.

If you were placed into Removal Proceedings as a result of fraud or misrepresentation, you may be eligible for a Fraud Waiver. There are two categories of the Fraud Waiver available; one for Conditional and Permanent Residents, the other for VAWA battered spouse self-petitioners.

1. A Conditional or Permanent Resident must prove the following to be eligible for a Fraud Waiver: You are a Conditional or Lawful Permanent Resident; You were otherwise admissible at the time of admission or at the time of adjustment of status, except for any inadmissibility that was a direct result of the fraud and misrepresentation; You are the spouse, parent, son, or daughter of a U.S. Citizen or Lawful Permanent Resident, and;Your case warrants a favorable exercise of discretion.
2. A VAWA battered spouse self-petitioner, must prove the following to be eligible for a Fraud Waiver: You were admitted into the United States, or adjusted status in the United States; Your admission or adjustment involved fraud or material misrepresentation, and; Your case warrants a favorable exercise of discretion

If your case is administratively closed, this means that you are STILL IN REMOVAL PROCEEDINGS, but you do not have a future court date scheduled. In other words, your removal proceedings are suspended indefinitely, but can always be placed back on the court’s calendar upon motion by either side.

Since the 2011 Morton Memo, DHS and the Immigration Judges used administrative closure as a docket-management tool to control resources by only focusing on “enforcement priorities.” If your case was administratively closed, it is most likely because you did not have any relief from removal immediately available to you, you are not a criminal and you are a person of good moral character.

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