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Deportation or Exclusion Proceedings

January 15, 2017 Philip Levin

A removal proceeding is just another word for deportation or exclusion proceedings. It is presided over by an Immigration Judge (IJ). These are not Article 3 state or federal judges, but are administrative officers who are considered by the federal government to be mid-level employees; they don’t have a great deal of power. IJs have the power to order someone removed from or to allow someone to remain in the U.S.

Reasons for Deportation

There are multiple possible reasons for deportation: Most often people are placed into removal proceedings because they have been convicted of a crime, they have violated an immigration law or laws, have overstayed their visa or status or committed fraud of some variety.

After an immigration arrest, it is impossible to tell how soon someone, or even if, they will be deported.

If someone is a violent criminal and is picked up directly from jail by the DHS, he or she will be taken into custody and kept in custody until his or her country issues a travel document, and then he or she will be deported. When that will be depends on the country and the individual’s case status.

Defenses to Removal

Defenses to removal are varied and many. Some people are able to remain in the United States by applying for political asylum and being granted political asylum. If a person is married to a U.S. citizen, another form of relief is applying for adjustment of status.

Cancellation of Removal

Other people who have been here long enough are able to apply for and obtain what is called “cancellation of removal,” generally requiring that a person has been in the United States a certain amount of time, has been a person of good moral character during that time period, has not committed an aggravated felony, and in the judge’s discretion is deserving of being allowed to remain in the U.S., generally because his or her close relatives who are U.S. citizens or permanent residents will suffer a high level of hardship.

When we are talking about cancellation or removal for nonpermanent residents, that type of hardship must reach the level of exceptional and extremely unusual.

Adjustment of Status

Other defenses to deportation will involve the applicant being allowed to file for adjustment of status. That is, he or she is eligible to obtain a green card because they have a close adult relative who is a U.S. citizen.  Sometimes even a green card holder relative can be enough.

Technicalities as a Defense

One type of defense to removal is to just show that the person is not removable under the ground that is alleged. Often, someone can win on a technicality that in fact they are not removable under the immigration law that is alleged on the notice to appear.

Filing for Prosecutorial Discretion

Filing for prosecutorial discretion (a type of deferred action), is also a defense to removal. Once someone is deported, they are generally barred from reentering the United States. However, if within the period off time they are required to remain outside of the U.S. (i.e., are inadmissible), they are eligible to come back because of a familial relationship who can obtain a green card for them, they are allowed to file a Form I-212 waiver, which is advanced permission to apply for a green card.

Forms, Petitions and Waivers

The I-130 is a family petition. If the I-130 is approved, there may be a chance for the person to apply for and pick up an immigrant visa in conjunction with an I-212 waiver and any other waivers that are necessary such as an I-601 waiver (for fraud or a criminal conviction).

Deportation Appeals: Board of Immigration Appeals (BIA)

There is a deportation appeals process. One can appeal an order of removal issued the immigration judge to the Board of Immigration Appeals (BIA), in Falls Church, Virginia.

One can appeal a BIA decision that it upholds an order of removal once the order is filed to their circuit court of appeals. Here, in San Francisco, we are governed by the Ninth Circuit Court of Appeals.

Learn more about the immigration services provided by Philip Levin & Associates.

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TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. LPPC will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

LPPC will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. LPPC will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on LPPC to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

Green Card

Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
Fiances

If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. LPPC will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

Marriage

Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
  • Immigrant Visa Consular Processing: If you are married to a U.S. citizen and reside abroad, we will assist you in preparing and filing the IV petition with an Embassy or Consulate-General in your native country. 
  • I-751, Remove Conditions on Residence: If you have been married less than two years at the time your green card was initially approved, our office will help you in the joint petition process to become a permanent resident.