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Is the U.S. engaging in Racial Profiling?

Posted on December 28, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

December 16, 2002 was the first “special registration call-in” program deadline. The program deadline required all males 16 years of age or older, who are citizens or nationals of one of five designated countries, and who entered the US as non-immigrants before September 10, 2002, to have registered to be fingerprinted and photographed.

A subsequent January 10, 2003 deadline applies to nationals from 13 more countries, and a February 21, 2003 deadline applies to nationals from another two countries.

This measure is yet another false solution to a real problem. Call-in registration offers us little protection because it targets people based on national origin, race and religion, rather than on intelligence information, and alienates the very communities whose cooperation we need. To make matters worse, the registration process is being wrongly applied. Instead of identifying terrorists, the INS in some local offices has used the special registration procedure to identify and detain people who are on the path to permanent residence, but are “out of status” — sometimes through no fault of their own. It makes no sense from security or resource perspectives to target people who eventually will be granted lawful status.

Not only is the call-in registration program ill-conceived, it also is being wrongly and ineffectively implemented and diverts law enforcement resources from initiatives that effectively enhance our security. The Department of Justice has not given the INS the necessary staff and resources to do its job and has not effectively disseminated information about the program. The paucity of information will make it likely that otherwise law-abiding people will not register or will fail to comply with program requirements and, therefore, be considered “per se” guilty of a criminal misdemeanor, deportable, and permanently barred from ever reentering the U.S.

Right now, it is only people from the designated countries that are targeted for this type of Special Registration. However, maybe next month, it will be another 10 countries and the month after another 10 countries. Eventually, the U.S. government might start having people who have relatives born in certain countries register. Eventually, the U.S. government might have U.S. Citizens register.

We must fight for civil liberties and constitutional due process for people here in the U.S. Of course no one wants there to be another terrorist attack. However, it is not real likely that a terrorist is going to go and Special Register. Therefore, the people whom are most likely to commit the terrorist acts are the very ones who will most likely not comply with the Special Registration requirements.

For many people in the U.S., this Special Registration is of no concern to them and they simply paint with a broad brush and state that we must prevent terrorism and that this is necessary. The critical concern is that it is the liberty and freedom of the United States that makes this country the best place on Earth to live. If that freedom and liberty is chipped away at, then the foundation of our country begins to erode.

We must do what is necessary to fight terrorism, but not impinge upon the duly protected constitutional rights of people. We must keep our civil rights and help those that are simply trying to make better lives for themselves. We must not target people and treat them unfairly simply because the color of their skin is different or there national origin is different. Otherwise, the terrorists have won.

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Filed under: Immigration Law, immigration provisions, Special Registration (Selective Services), Terrorism, USCIS | Tagged: , | Leave a comment »

Can I be deported?

Posted on December 28, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been out of status for a number of years. Currently, I have a couple different petitions going forward. Once is a sibling based family petition, and the other is an employment based Labor Certification. I was told that it would take about another three to four years to be able to adjust my status to that of a Lawful Permanent Resident. There have been many news stories of people begin picked up by INS and deported, I am afraid for myself, my wife and my children. Can I just be deported?

Answer: Under most circumstances, the answer is no. Because you are here in the United States, you are allowed the opportunity to go in front of an Immigration Judge. Only if you had a previous deportation order can INS just take you and deport you without giving you a hearing. It is your constitutional right. Unlike many other countries around the world, even if you are not a citizen or a lawful permanent resident of the United States, you are entitled to due process. This means that you have an opportunity to present your case, to question witnesses, to cross examine witnesses who testify against you, to apply for relief or ways of staying permanently in the United States and to appeal decisions of the Immigration Judge that you are not satisfied with.

Question: What exactly might happen?

Answer: Each case is different. However, if you are targeted by INS, you should be served with what is known as a Notice to Appear. This is the beginning of the process. You might be taken into custody upon which you would be able to try to get a Bond Redetermination Hearing to get bonded out or become free while the immigration case is going forward. Then, over the next six months to two years, you will present your case in front of the Immigration Judge with the hope of winning.

Question: Am I entitled to an attorney?

Answer: Yes. You have every right to have an attorney represent you through these proceedings. However, unlike criminal cases, you must pay for the attorney to help you. The State will not provide one free of charge.

Question: How can the U.S. Constitution protect someone in my position?

 Answer: Because the U.S. Constitution gives people their rights as free persons in this country. If the U.S. Government were to just pick someone up and deport them, there would not be any safeguards against possible mistakes they may make. Also, the law allows people who are out of status to obtain their Green Cards based upon certain criteria. The government allows you to present that evidence. Just remember that this is the best country in the world to live in (no offense to those people elsewhere) and one reason it is such a great place to live is because individual rights are valued and treasured by our Constitution.

 However, the United States Government seems to be taking various rights away from certain immigrants. Therefore, you will have to make certain that you contact an immigration attorney right away in order to protect your rights and not be wrongfully deported.

Filed under: Deportation, Immigration Law, immigration provisions, Labor Certification, USCIS | Tagged: , | Leave a comment »

The Social Security Dilemma of Nurses

Posted on December 28, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am a nurse and have just passed the NCLEX. I have a hospital who is more than willing to sponsor me. However, I have a big problem. In order to apply for the Green Card through the Nurse Petition, I need to have my unrestricted State License. Under normal circumstances people can get their license as soon as they pass the NCLEX. However, I cannot get my license without a social security number. I cannot get a social security number without a work permit. So, I am stuck. I am so close to getting the Green Card, yet not able to continue. Is there anything I can do?

ANSWER: Yes there is. This has been a considerable problem. It is a very unfortunate problem in that there is a severe shortage of nurses in the United States. Because of that shortage one would think that the INS regulations would not put up so many hurdles to bringing nurses into the country. The INS has finally seen this dilemma and now has created a solution.

Unfortunately the NCLEX is only offered inside the U.S., and therefore, it is necessary for many nurses who come here on visitor visas to take the NCLEX while in the U.S. However, while on a visitor visa, the nurse does not qualify for the social security number.

The irony of this is that these people would have to go back to their home country to take the CGFNS, wait outside the U.S. for over one year, and then come back in the country as a lawful permanent resident. The CGFNS does not mean that the nurse is licensed to practice nursing in the United States. Rather, it states that a nurse is likely to pass the NCLEX when she/he arrives in the United States. Once inside the U.S., then the nurse must take the NCLEX. Here is the irony. A person who has passed the NCLEX already, but cannot get the social security card had to go back to their home country to take the CGFNS in order to show that it was likely that they would pass the NCLEX.

Sometimes it is silly laws like this that prompt action to be taken. Now, the Immigration and Naturalization Service will accept a nurse petition upon presentation of a certified copy of a letter from the state of intended employment which confirms that the alien has passed the NCLEX examination and is eligible to be issued a license to practice nursing in that state.

QUESTION: Now that I know that I can submit the application for the Nurse Petition with proof of passing the NCLEX, when can I adjust my status to that of a lawful permanent resident?

ANSWER: Now, because you are immediately eligible to file the nurse petition, otherwise known as the I-140, you are also eligible to file for the adjustment of status simultaneously. This means that you can file both the I-140 nurse petition and the I-485 adjustment of status petition at the same time. You will get your temporary work permit in about 90 days and then be able to legally work while awaiting final approval on both the I-140 and the I-485 adjustment.

 QUESTION: Will I be able to leave the United States while I am awaiting the results of the I-140 and the I-485?

ANSWER: Yes. You can apply for what is known as Advance Parole. This will allow you to leave the United States while the petition is pending and to return without a problem.

This new regulation is most welcome. Hopefully, the INS will see other types of problems in the future and amend the regulations to ease the problems in applying for the visas.

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Filed under: Advance Parole, Immigration Law, immigration provisions, Nurses, USCIS | Tagged: , | Leave a comment »

Can I still Change my Status?

Posted on December 28, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I know that the immigration laws now only allow me to come into the U.S. on a Visitor Visa for only 30 days. I was planning to go to the U.S. to visit, and then later, if I found a good job offer, to change my status to some type of working status. Additionally, if I later decided, I was going to change my status to that of a student. Can I still do this?

 Answer: It appears that it will be much more difficult to change your status in this type of situation. Normally, when visitors came to the U.S. under the B1/B2 Visa, they had six months. At some later point after entering, they would be able to change their status. Please note that some rumors have been spreading that there is no more change of status applications being accepted. This is simply not true. Rather, it is the effect of applying for a change of status once you enter the U.S. that is the problem.

Question: Can you elaborate on what exactly is the problem?

Answer: Actually, when you come in on a Visitor Visa, you are supposed to be doing exactly that. VISITING! That means going to Disneyland, visiting relatives, and having a good time. It does not mean going to school, getting a job or applying for the Green Card. If you come to the U.S. and within 30 days apply for a change of status to some other type of status such as student or worker, the INS may not believe that you intended to ever really visit the U.S. They may assume that you used the Visitor Visa as a means to get into the U.S. so that you could do what you really wanted to do (such as work or go to school.)

 Question: What are the consequences of doing the change of status right after entering the U.S.?

Answer: First, they could deny your change of status application and you could go out of status. Next, the INS may very well assume that you committed fraud. That is, when you got the Visitor Visa and entered the U.S. that you did not really intend to visit, but rather, intended to go to school or to work in the United States. If that happens, you could be deported because you committed misrepresentation and fraud. The fraud will stay with you forever and never goes away. If you ever want to reenter the U.S., you will need to get a Fraud Waiver. Those are not easy waivers to obtain.

Question: What is the best way to avoid these drastic consequences?

 Answer: First, the way that people come into the U.S. is probably going to change. You must decide whether you want to go to school or work since these are the options you might be considering. If you are intending on going to school, then you should get the I-20 and apply for the Student Visa from your home country. Then, when you enter the U.S., you will be entering as a Student, not a Visitor. Alternatively, if you want to work in the U.S., you should have your sponsor file the petition prior to you getting to the U.S. Therefore, you will not have any allegations by INS that you committed fraud. You need to be very careful if you come to the U.S. with a Visitor Visa and then change your status right away. Obviously, since you only will be getting 30 days in the U.S., you must strongly consider not getting a change of status in the U.S.

Filed under: B1/B2 Visas, Change of Status, Immigration Law, immigration provisions, USCIS | Tagged: , | Leave a comment »

Are we moving closer to a Police State?

Posted on December 28, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard a lot about keeping better track of people from around the world who enter and exit the U.S. Earlier I thought I would never want to live in a country that has an Exit Visa System (like Cuba) and now it seems we may be implementing a similar system. Can you explain?

Answer: Pursuant to the Homeland Security Act of 2002, the Secretary of the Department of Homeland Security (DHS) is responsible for establishing an automated entry/exit system. The Department of Homeland Security has made the US-VISIT (United States Visitor and Immigrant Status Indicator Technology) program one of its top priorities. The US-VISIT, the Department’s automated entry/exit system, will expedite legitimate travelers, while making it more difficult for those intending to do us harm to enter our nation. The system is designed to collect, maintain, and share information, including biometric identifiers, through a dynamic system, on foreign nationals to determine whether the individual should be prohibited from entering the U.S.; Can receive, extend, change, or adjust immigration status; Has overstayed their visa; and/or needs special protection/attention (i.e., refugees); and enhance traffic flow for individuals entering or exiting the U.S. for legitimate purposes.

 Question: What is meant by ‘legitimate’ purposes?

Answer: That is a difficult question to answer. While the DHS might believe it knows what ‘legitimate’ purposes means, over time, the definition might be expanded. While this procedure of an exit system does not apply to U.S. Citizens, we never know what might happen in the future. We must not give up our rights to fight for our freedom.

Question: Will there be some sort of identification given?

Answer: Secretary Ridge announced in April that the US-VISIT system will be capable of capturing and reading a biometric identifier at air and sea ports of entry before the end of 2003. This system is said to be capable of scanning travel documents and taking fingerprints and pictures of foreign nationals, which then could be checked against databases to determine whether the individual should be detained or questioned concerning possible terrorist or criminal involvement.

Question: What will the government do with this information?

Answer: The US-VISIT system will be implemented incrementally, but eventually will collect information on the arrival and departure of most foreign nationals such as: date; nationality; classification as an immigrant or non-immigrant; complete name; date of birth; citizenship; sex; passport number and country of issuance; country of residence; U.S. visa number, date and place of issuance (where applicable); alien registration number (where applicable); and complete address while in the United States. The information will be stored in databases maintained by DHS and the Department of State as part of an individual’s travel record.

The other system known as NSEERS is a system implemented to make certain that people in the U.S. who are not U.S. Citizens and are from countries around the world that the U.S. believes is involved in terrorist activities must register with the government before leaving. Again, while most of us do not believe it will affect us at the present time, the U.S. government is doing more and more things to affect the rights of people. That is why we must fight for our fellow immigrants and stand up when we believe that their rights have been violate. We do not know when the government might be at our doorstep.

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Filed under: Department of Homeland Security (DHS), Immigration Law, immigration provisions, US-VISIT System, USCIS | Tagged: , | Leave a comment »

Title: The Visa with Multiple Faces

Posted on December 24, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

 Question: I have tried to come to the United States on different types of visas, but have been denied at each turn. I cannot get a Visitor Visa and do not qualify for an H-1B work visa. I have also been denied the Student Visa. Do you have any suggestions?

Answer: The J Visa is very versatile. One can come in on the J Visa for many types of purposes. For example, the J Visa is available for students, professors and research scholars, short-term scholars, trainees, specialists, foreign medical graduates, international and government visitors, teachers, camp counselors and au pairs.

Question: Can you explain in some more detail what is involved with these categories?

Answer: For the students, a J is available for persons going to colleges that have been approved with a J Program. Students under certain conditions are allowed to work.

A trainee is one of the more popular uses of the J Visa. A trainee as an individual participating in a structured training program conducted by the selecting sponsor. The primary purpose of the trainee category is to enhance the exchange visitor’s skills in his or her specialty or non-specialty occupation through participation in a structured training program and to improve the participant’s knowledge of American techniques, methodologies, or expertise. The following areas are available for issuance of the J-1 Visa. Arts and culture; information media and communications; education, social sciences; library science, counseling and social services; management, business, commerce and finance; health-related occupations; aviation; the sciences, engineering, architecture, mathematics, and industrial occupations; construction and building trades; agriculture, forestry and fishing; public administration and law; and various other occupations as specified by the sponsor.

A J-1 specialist is defined as an individual who is an expert in a field of specialized knowledge or skill coming to the United States for observing, consulting, or demonstrating special skills. This category does not include professors, research scholars, short-term scholars, or foreign physicians in training programs. This type of J-1 can by used in lieu of the H-1B.

The au pair program permits foreign nationals to enter the United States for up to one year to live with a U.S. host family and participate directly in the home life of the family while providing limited child care services and attending a U.S. post-secondary educational institution.

Professors and research scholars may be sponsored as J-1 exchange visitors to engage in research, teaching, lecturing, observing, or consulting at research facilities, museums, libraries, post-secondary accredited educational institutions, or similar institutions.

Foreign medical graduates sponsored by accredited academic institutions with designated exchange visitor programs may come to the United States as exchange visitors for the purposes of observation, consultation, teaching, or research.

Teachers may be sponsored as exchange visitors to teach full-time at accredited primary or secondary educational institutions.

Secondary school students may come to the United States as J exchange visitors for up to one year to study at a U.S. public or private secondary school, while living with a U.S. host family or at an accredited U.S. boarding school.150 Participants must pursue a full course of study at an accredited educational institution for at least one and not more than two academic semesters.

A camp counselor is an individual selected to be a counselor in a summer camp in the United States who imparts skills to American campers and information about his or her country or culture. Participation in camp counselor exchange programs is limited to foreign nationals who are at least 18 years old and are bona fide youth workers, students, teachers, or individuals with special skills.

The summer/student travel work program is a program that authorizes foreign university students to travel and work in the United States during their summer vacations to involve the students directly in daily life in this country through temporary employment opportunities.

As you can see, the J Visa offers many options. While there may be a two-year foreign residency requirement, many times this type of visa offers the only hope for getting into the U.S.

Filed under: H-1B Specialty, Immigration Law, immigration provisions, J-1, USCIS | Tagged: , | Leave a comment »

Title: The Battered Spouse Petition

Posted on December 24, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I loved my husband when I came to the U.S. However, he is now always threatening to call deportation all the time and he is beating me. I do not want to return to my home country, but if I leave my husband I am afraid that I will lose my chance to ever get my green card. Is there anything I can do?

Answer: Yes. There is what is known as the Battered Spouse Petition for people in your exact situation. If you qualify, you can petition yourself without the help or need of your husband. In fact, by law, the Bureau of Immigration and Customs Enforcement (BICE) cannot use any statement your husband may use against you to try to defeat the petition.

Question: What is required for this type of petition?

Answer: The process of self-petitioning for family-based immigrant visa classification parallels that of filing a family-based petition with the cooperation of the beneficiary’s sponsor. The ultimate result of both petitions is the same; i.e., classification as an immediate relative who is immediately eligible to adjust her status

The following categories of abused individuals can self-petition for a family-based visa: 1) non-citizens who were battered or subjected to extreme cruelty by their U.S. citizen or permanent resident spouse; 2) non-citizen spouses whose children were battered or subjected to extreme cruelty by the non-citizens’ U.S. citizen or permanent resident spouse; and 3) non-citizen children who were battered or subjected to extreme cruelty by their U.S. citizen or permanent resident parent.

The legal status of the self-petitioner or her child is irrelevant: they can be undocumented, in status (with a nonimmigrant visa, for example), or out of status. However, the abuser must be a U.S. citizen or lawful permanent resident.

The non-citizen spouse self-petitioner must show that her marriage to the U.S. citizen or permanent resident spouse was entered into in good faith.

The self-petitioning spouse or her child must have been battered or subjected to extreme cruelty by her spouse during the marriage.

Evidence of abuse may include but is not limited to reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel.

Question: What if I divorce my husband? Will I still be eligible for this petition?

Answer: Yes. You do not and should not live with someone whom is either battering you or subjecting you to extreme cruelty. As long as the petition is filed within 2 years of the divorce, you can divorce him and get out of this abusive relationship. In that way, you will still be allowed to apply for the green card, but will not be in a hurtful relationship.

Filed under: Battered Spouse, Immigration Law, immigration provisions, Self-Petitioning - Battered Spouse, VAWA | Tagged: , | Leave a comment »

A new way to beat Deportation

Posted on December 23, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been here in the U.S. since I was six years old. About 12 years ago, I committed a drug crime of possession for sale. I was sentenced to 4 months. Now, all these years later, I have been put into removal proceedings where INS is trying to deport me. I have been told that I am an aggravated felon and there is nothing I can do. I have further been told that I will most likely be deported away from my family including my U.S. Citizen spouse and three U.S. Citizen Children. I have never done anything else criminally and it was just a stupid mistake when I was young. I have changed, have a good job, a family with U.S. Citizens and many community ties. Is there anything I can do?

Answer: As the law stands now, there is very little you can do. This is a result of the 1996 laws which increased dramatically the laws on what was considered to be an aggravated felony. It has torn families apart for many years since 1996. People who have become long term residents in the U.S. and have their Green Cards found out it did not make any difference. They were still deported. Furthermore, they found out that they were barred from coming back into the U.S. for the rest of their lives. Congress has seen all the suffering caused by the unfair and anti-immigration laws of 1996 and just this week the House Judiciary Committee passed the 2002 Due Process Reform Bill. While it still must be passed by the Senate and signed by the President, it is an excellent step in giving back some of the due process rights lost by long term residents who were put in deportation proceedings because of various crimes.

Question: How does this particular bill help me?

Answer: Please note that the Senate might change some of the provisions, or the President might require some alternate items in the bill. However, as the bill stands now, it applies specifically to people who previously had their Green Cards. They were or are going to be placed into deportation or removal proceedings because of a crime they committed. They are considered to be an aggravated felons and do not qualify for the normal Cancellation of Removal.

Question: What is Cancellation of Removal?

Answer: Prior to this bill there was a section of the bill referred to as Cancellation of Removal for Certain Lawful Permanent Residents. Generally, you had to have your Green Card for at least five-years and be physically present in the U.S. for at least seven-years. Finally, and this is the item that disqualified numerous people, is that you cannot be convicted of an aggravated felony.

Question: What does the new bill allow?

Answer: Basically it deals with the Cancellation of Removal for people who have committed aggravated felonies. In the new bill, it expands the Cancellation of Removal so that it allows people whom have been convicted of aggravated felonies to still keep their Green Cards and stay in the U.S. It deals with three different scenarios. First, people who have been convicted of a non violent aggravated felony. Second, people who were convicted of a violent aggravated felony. Finally, people who have been convicted of an aggravated felony and came to the U.S. as a young child. Each of these provisions allows a person to remain in the U.S. and to not be deported if the Judge grants the Cancellation of Removal. Therefore, this is a very big step toward restoring some of the harsh anti-immigrant provisions of the 1996 law. Hopefully, this trend will continue so that families can be reunited and the tearing apart of immigrant families will stop. .

Filed under: Deportation, Immigration Law, immigration provisions, Removal Proceedings, USCIS | Tagged: , | 2 Comments »

Title: Have I or Have I not “Aged-Out”?

Posted on December 23, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I know that President Bush has signed into law the new Child Status Protection Act (CSPA) on August 6, 2002. However, I am very confused on whether this law applies to me. Can you clarify how I know if I have ‘aged-out’ under the new law?

Answer: First, there are sections that apply to Immediate Relatives. Generally, these would be spouses of U.S. Citizens, parents of U.S. Citizens over 21 years of age and sons/daughters of U.S. Citizens who are under 21 years of age and unmarried.

Thus, most of the child age-out provisions will apply to the last category. Here, if the beginning of the family petition is filed BEFORE the child turns 21, then no matter how long it takes, that child will be deemed to be a child for immigration purposes.

Question: What if my parent was a Lawful Permanent Resident when he filed for me and I was under 21 at the time, but now my parent has become a U.S. Citizen?

Answer: In this case, the date that your parent naturalizes will control. Therefore, if your parent naturalized and you were 20 years old, then you will be considered a ‘child’ who will not age-out for this act. Therefore, it would be critical if your parent has not yet naturalized, and you are under 21 years of age, that they immediately begin naturalization proceedings.

Question: What if my friend was married at 18 years of age and then got divorced at 20 years of age? Will he qualify?

Answer: Yes. If his U.S. Citizen parent has petitioned him, then he will automatically move to the preference which is set for single son and daughters of U.S. Citizen Parents.

Question: Is the law retroactive and how do I know if I fall under it?

Answer: It appears as though current interpretation is that if there was a final decision on the case, that it is not retroactive. However, if the case is still pending, it appears that it will fall of the provisions of this act. Please note that the interpretations by the Department of State seem also to indicate that if derivative beneficiaries have not had a final approval on the case, but that the main applicant has, that it still could fall under this act.

Therefore, anyone who has been waiting years for this petition to become current, only to learn that they must wait many more years after becoming a U.S. Citizen, should take advantage of this law right away. All of these interpretations are from the Department of State. They have specifically stated that they might be able to change those interpretations after interagency communications. Therefore, what is stated here might change as time goes on. It hopefully will change to allow even more people fall under the provisions of this particular law.

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Title: Is there hope for me in deportation proceedings?

Posted on December 23, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been in the United States for 13 years and have worked illegally the entire time. My boss just came to me last week and said the Social Security Department has sent him notification that there is something wrong with my Social Security Number and that he must terminate my position. Two days later I got a letter from the Immigration and Naturalization Service that I am in deportation proceedings. Do I have any hope?

Answer: First, the Social Security Department has been getting much stricter on notifying employers when a Social Security Card does not match the employees information. Previously, they had done this only when there was an employer with a large amount of employees who had incorrect information (e.g., fake social security cards.) However, in the current world we live in, they are now sending employers the request for confirmation of the Social Security Card if a single employee’s information does not match. Under the immigration laws, they are then forbidden to keep the employee hired without violating the law.

Unfortunately, you are now in Removal Proceedings and the INS will try to have you deported. Fortunately, the United States has several options for people in Removal (or deportation) Proceedings even if they have worked out of status and are here in the United States illegally. There is what is known as Cancellation of Removal. In order to qualify for this type of relief, you need several things. First, you must have been physically present in the United States for at least ten years. Secondly, you must have good moral character. Finally, you must have an immediate Lawful Permanent Resident Relative or United States Citizen who will suffer extreme hardship if you are deported or removed from the United States.

Question: I do have two United States Citizen Children. However, how would I possibly show or prove that they would suffer extreme hardship if I were deported?

Answer: You have actually hit on the most difficult part of a Cancellation of Removal case. It is showing the extreme hardship. Previously, if you had children that were of at least five or six years old, it was not difficult to prove this issue. Then the Board of Immigration Appeals came out with a case that basically made it incredibly difficult to meet the extreme hardship burden. Recently, the Board of Immigration Appeals has seemed to back off of such a stringent interpretation of the issue of showing extreme hardship. It is known as the Recinas case and was decided less than one month ago. In fact, the exact terminology that you must consider is ‘exceptional and extremely unusual’ hardship. Therefore, the hardship associated with a normal deportation will not suffice. However, under Recinas, you do not need to show that the hardship would be unconscionable. In deciding a Cancellation of Removal claim, consideration and evidence should be given to the age, health and circumstances of the family members. Some of the factors would include how a lower standard of living or adverse country conditions in the country of return might affect those relatives.

Question: What type of factors should I present to show the hardship?

Answer: In addition to the above, try to show all U.S. Citizen family members who interact with your children (such as a Grandmother or Grandfather.) Present evidence on how little knowledge they have of their home country, or how they may not know the language and culture of the home country. Present evidence showing financial, emotional and medical hardships. Also, show that there are no other realistic means for you to ever immigrate to the U.S. again. Basically, it is not easy to obtain Cancellation of Removal, but if all the evidence is presented and all of the different factors are taken into account regarding the hardship, there is a chance you will be granted your Lawful Permanent Residence based upon Cancellation of Removal.

Filed under: Deportation, Immigration Law, immigration provisions, Removal Proceedings, USCIS | Tagged: , | Leave a comment »

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  • Brian D. Lerner

    Immigration Lawyer

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