DEPORTATION DEFENSE ATTORNEY

When you or your loved one is placed in removal proceedings, the Department of Homeland Security serves a Notice to Appear (i.e. NTA). This NTA will contain factual allegations and legal conclusions concerning you or your loved one’s inadmissibility or deportability (i.e. why the United States government believes you or your loved one should be deported from the country). It is important to keep in mind that these factual allegations are not actual evidence and the legal conclusions are not binding on the immigration judge. The Department of Homeland Security must be able to make a preliminary showing that assuming the factual allegations are true in the Notice to Appear, you are inadmissible or deportable as charged.

Motions to terminate have increasingly become valuable tools to challenge your deportation from the United States. Unfortunately, the Department of Homeland Security can allege facts that are not accurate or lodge charges against you or your loved one that simply are not supported by the facts. Some reasons to seek termination of you or your loved one’s removal proceedings, include:

• You are a United States citizen;
• You were not properly served with the Notice to Appear (i.e. NTA);
• The Department of Homeland Security has failed to prove you are a foreign national;
• The Notice to Appear (i.e. NTA) fails to allege sufficient facts to establish you are inadmissible or deportable as charged even if all the allegations are true; and
• You were improperly charged with removal, because the allegations in the NTA do support all elements of the ground under which the Department of Homeland Security seeks to remove you.

If you fear you will be tortured if forced to return to your home country, you may eligible for relief under the Convention Against Torture (i.e. CAT). Under the Convention Against Torture, the United States is prohibited from deporting you to a country where you are more likely to than not to be subject to torture. 

To be granted relief under CAT, you must show that it is “more likely than not” that you will be tortured if you are forced to return to your home country. However, unlike asylum and withholding of removal, you are not required to show that you will be tortured because of your race, religion, nationality, political opinion, or membership in a particular social group to be granted CAT. To be eligible for relief under CAT, you must establish:

• The harm you fear must meet the definition of “torture”, which requires severe physical or mental pain and/or suffering;
• The harm you fear will be intentionally inflicted upon you;
• The harm is inflicted upon you to obtain information or a confession from you or another person, punish you for your conduct or the conduct of another, intimidate you or another person, and/or coerce you or another person; and
• The torture must be inflicted by or at the instigation of or with the consent and acquiescence of a public official who has custody or physical control of the victim.

CAT can only be granted by an Immigration Judge. This means CAT is only available as a defense to removal. If granted CAT, you may remain in the United States and be eligible for employment authorization. 

CAT is often a last resort, because it is a more tenuous immigration status. When you are granted CAT, you are ordered removed from the United States. CAT only applies to the country which the Immigration Judge designates in his/her decision. This means you may still be removed from the United States to a third country where you do not have a fear of torture. Like withholding of removal, CAT can be terminated if you are no longer likely to face torture. You can be detained by Immigration and Customs Enforcement (i.e. ICE) even if granted CAT if you pose a danger to the community. In addition, like withholding of removal, there is

• No derivative immigration benefits for your spouse and/or children;
• No path to lawful permanent residence (i.e. a green card); and 
• No permission to re-enter the United States after traveling abroad.

If you are afraid to return to your home country, you may be eligible for asylum. Asylum is a form of protection offered by the U.S. Government to foreign nationals who are in the United States and are afraid to return to their home countries. To be eligible for asylum, you must have suffered persecution or fear that you will be persecuted in the future because of your race, religion, nationality, political opinion, or membership in a particular social group. The term “persecution” encompasses acts such as physical violence, rape, torture, threats of harm, unlawful detention, unlawful surveillance, forcing you to engage in conduct abhorrent to your deepest beliefs, severe discrimination and harassment, and substantial economic deprivation.

Even if you establish you have or will be persecuted because of your race, religion, nationality, political opinion, or membership in a particular social group, you may be ineligible for asylum. You may not be permitted to apply for asylum if you:

• Did not file your Form I-589, Application for Asylum and for Withholding of Removal within one year of your last arrival in the U.S. unless you can establish an extraordinary or changed circumstances excusing your delayed filing;
• Had a previous asylum application denied by the Immigration Court or Board of Immigration Appeals; or
• Can be removed to a safe third country under an agreement between the United States and other countries.

In addition, you will not be granted asylum if you:

• Ordered, incited, assisted, or otherwise participated in the persecution of others, because of their race, religion, nationality, political opinion, or membership in a particular social group;
• Have been convicted of a “particularly serious crime” and you pose a danger to the United States;
• Have committed a “serious nonpolitical crime” outside the United States;
• Pose a danger to United States’s security;
• Firmly resettled in another country before arriving in the United States;
• Are engaged, have engaged, or are likely to engage in terrorist activity or are the spouse or child of an individual who engaged in terrorist activity during the last 5 years;
• Have been convicted of unlawfully re-entered the United States;
• Have been convicted of alien harboring or smuggling;
• Have been convicted of crimes that the adjudicator knows or has reason to believe were related to the activity of a criminal street gang;
• Have been convicted of driving while intoxicated or impaired where such impaired driving was the cause of serious bodily injury or death of another;
• Have been convicted of a second or subsequent offense for driving while intoxicated or impaired;
• Have been convicted of crimes involving conduct amounting to a crime of stalking, child abuse, child neglect, or child abandonment, as well as various domestic violence-related offense (you are also barred from asylum if the adjudicator knows or has reason to believe have engaged in battery or extreme cruelty within the context of domestic violence, regardless of whether you were convicted of a crime);
• Have been convicted of a misdemeanor offenses related to the possession or use of false identification, the receipt of a public benefit, or possession of a controlled substance or paraphernalia (other than a single offense involving possession for one’s own use of 30 grams or less of marijuana); and/or
• Have been convicted of any felony.

You may request asylum by filing a “defensive” asylum application or pursuing an "affirmative" asylum application referred to the Immigration Court while you are in removal proceedings and you are seeking to avoid being removed from the United States. Your asylum application will be considered by an Immigration Judge at an Individual Merits Hearing. If you are granted asylum, you will be able to:

• Remain in the United States indefinitely;
• Work legally in the United States;
• Obtain derivative asylee status for your spouse and/or unmarried children under the age of 21;
• Travel outside the United States; and
• Become a lawful permanent resident (i.e. green card holder).

The process for seeking asylum is complicated. Asylum law is constantly evolving and extremely nuanced. There are many questions that need to be addressed such as (1) what harm were you subjected to?; (2) who harmed you?; (3) why were you harmed?; and (4) are there any mandatory grounds for denial present? Our team of experienced and compassionate immigration attorneys can help you navigate this complex landscape and present your strongest case.

If you fear persecution in your home country, but are ineligible for asylum because you have been convicted of an aggravated felony, failed to file your asylum application within 1 year of entry, or being subject to a mandatory bar, you may be eligible for withholding of removal if you fear returning to your home country. A grant of withholding of removal prohibits the United States government from returning you to your home country if your life or freedom would be threatened due to your religion, race, nationality, political opinion, or membership in a particular social group. While withholding of removal is similar to asylum in many aspects, ultimately, it is an inferior form of relief. You may be able to remain in the United States and work legally. However, unlike asylum, there is:

• No derivative immigration benefits for your spouse and/or children;
• No path to lawful permanent residence (i.e. a green card); and
• No permission to re-enter the United States after traveling abroad.

In addition, withholding of removal can be more easily revoked should conditions in your home country improve. When granted withholding of removal, you are ordered removed. Withholding of removal only applies to the country which the Immigration Judge designates in his/her decision. This means you may still be removed from the United States to a third country where you do not have a fear of persecution.

Withholding of removal can only be granted by an Immigration Judge. This means withholding of removal is only available as a defense to removal. You also must meet a higher legal standard to establish eligibility for withholding of removal. Withholding of removal will only be granted if you can establish it is “more likely than not” that you will be persecuted if forced to return to your home country.

You cannot be granted withholding of removal if you have:

• Ordered, incited, assisted, or otherwise participated in the persecution of others, because of their race, religion, nationality, political opinion, or membership in a particular social group;
• Have been convicted of a “particularly serious crime” and you pose a danger to the United States;
• Have committed a “serious nonpolitical crime” outside the United States;
• Pose a danger to the United States’s security; and
• Are engaged, have engaged, or are likely to engage in terrorist activity.

Unlike in the asylum context, an aggravated felony conviction does not automatically constitute a “particularly serious crime” unless you were sentenced to a term of imprisonment of 5 years or more. However, the Immigration Judge will assess whether the conviction was for a particularly serious crime by looking at the nature of the crime, circumstances surrounding the crime, sentence imposed, and whether the crime indicates you pose a danger to the community.

Cancellation of removal under INA § 240A (i.e. “cancellation”) has become an increasingly important defense for foreign nationals with strong ties to the United States especially given the rise in immigration enforcement. You may be eligible for cancellation of removal if you are a lawful permanent resident (i.e. green card holder) or undocumented facing removal proceedings if you have been in the United States for many years and have strong ties to the country. Cancellation of removal can help you obtain or retain lawful permanent residence (i.e. a green card).

It cannot be stressed enough that cancellation of removal is a “defensive” application. This means you can only apply for cancellation of removal if you are in proceedings before the Immigration Court. You cannot affirmatively file an application for cancellation of removal with USCIS.

There are two types of cancellation of removal under INA § 240A. The first type of cancellation of removal is commonly referred to as “42A” and is for lawful permanent residents (i.e. green card holders). The second type of cancellation of removal is commonly referred to as “42B” and is for undocumented foreign nationals.

Applying for cancellation of removal as a lawful permanent residents under INA § 240A(a) (i.e. EOIR-42A)

You may be eligible for cancellation of removal if you are a lawful permanent resident and can meet the following criteria:

• You have been a lawful permanent resident (i.e. green card holder) for at least 5 years;
• You have resided in the United States for a continuous period of at least 7 years; and
• You have not been convicted of an aggravated felony.

Just because you meet the requirements for LPR cancellation of removal does not mean your application will be granted. The immigration judge has to decide whether you should be granted cancellation of removal as a matter of discretion. This means you not only need to show you are eligible for LPR cancellation of removal, but that you “deserve” to be granted cancellation of removal and retain your lawful permanent residence (i.e. your green card). The immigration judge will weigh the positive factors present in your case against the adverse factors. Positive factors include, but are not limited to, the following:

• Your family ties to the United States;
• Duration of your residence in the United States;
• Your involvement in the community including community service beyond what may have been imposed by the court;
• Your reformation and rehabilitation;
• The passage of time since your criminal conviction;
• Your employment history; and
• Potential hardship to your family members if cancellation of removal is not granted.

Adverse factors include, but are not limited to, the following:

• Your criminal record, including the nature, recency and seriousness of your crimes;
• Whether you are removal under any other grounds and if yes, the nature and circumstances underlying such grounds of removal;
• Whether you have other significant violations of immigrations laws; or
• Other evidence that supports shows you possess bad character or otherwise undesirable as a lawful permanent residence.

Applying for cancellation of removal for as a non-permanent residents under INA § 240A(b) (i.e. EOIR-42B)

You may be eligible for cancellation of removal if you are a non-permanent resident and can meet the following criteria:

• You have been physically present in the United States for a continuous period of at least 10 years;
• You have been a person of good moral character for 10 years;
• You have not been convicted of certain criminal offenses including a crime of involving moral turpitude, an aggravated felony, multiple criminal convictions for which you were sentenced to at least 5 years in prison, controlled substances offenses, prostitution, and domestic violence, child abuse, stalking, or violation of an order of protection;
• Your removal from the United States would cause exceptional and extremely unusual hardship to your lawful permanent resident (i.e. green card holder) or United States citizen spouse, child, or parent.

You are not eligible for cancellation of removal if you:

• Were previously granted cancellation of removal, suspension of deportation, or relief under former INA § 212(c);
• Persecuted others, or are inadmissible or deportable under the anti-terrorist grounds; and
• Entered the United States as a crewman who entered after June 30, 1964 or as a J-1 exchange visitor.

Just because you meet the requirements for non-LPR cancellation of removal does not mean your application will be granted. The immigration judge has to decide whether you should be granted cancellation of removal as a matter of discretion. This means you not only need to show you are eligible for non-LPR cancellation of removal, but that you “deserve” to be granted cancellation of removal and have your status adjusted to lawful permanent resident. The immigration judge will weigh the positive factors present in your case against the adverse factors to determine if you “deserve” to be granted cancellation of removal.

Applying for special rule cancellation of removal as an abused spouse

Are you currently in removal proceedings and have you been abused by your lawful permanent resident or United States spouse or parent? You may be eligible for special rule cancellation of removal if you are the spouse or child of a United States citizen or lawful permanent resident (i.e. green card holder) who was subjected to battery or extreme cruelty at the hands of your spouse or parent. Under the Violence Against Women Act (i.e. VAWA), you may be eligible for special rule cancellation of removal if you are a non-permanent resident and can meet the following criteria:

• You have been battered or subjected to extreme cruelty by your United States citizen or lawful permanent resident (i.e. green card holder) spouse or parent;
• You are the parent of a child United States citizen or lawful permanent resident (i.e. green card holder) and your child has been battered or subjected to extreme cruelty by such parent;

      OR

• You have been battered or subjected to extreme cruelty by a United States citizen or lawful permanent resident whom you intended to marry, but your marriage was not legitimate, because your United States citizen or lawful permanent resident spouse was still married to someone else;

      AND

• You have been continuously present in the United States for at least 3 years before filing your application for cancellation of removal;
• You have been a person of good moral character during the 3-year period of continuous physical presence;
• You have not been convicted of certain criminal offenses including a crime of involving moral turpitude, an aggravated felony, multiple criminal convictions for which you were sentenced to at least 5 years in prison, controlled substances offenses, prostitution, and domestic violence, child abuse, stalking, or violation of an order of protection;
• You have not engaged activities such as terrorist activities, torture, extrajudicial killings, genocide, marriage fraud, and/or human trafficking; and
• Your removal would result in you, your child, and/or your parent(s) suffering extreme hardship.

Just because you meet the requirements for special rule cancellation of removal does not mean your application will be granted. The immigration judge has to decide whether you should be granted cancellation of removal as a matter of discretion. This means you not only need to show you are eligible for special rule cancellation of removal, but that you “deserve” to be granted cancellation of removal and have your status adjusted to lawful permanent resident. The immigration judge will weigh the positive factors present in your case against the adverse factors to determine if you “deserve” to be granted cancellation of removal.

You may be eligible to apply for adjustment of status to lawful permanent residence if you are the beneficiary of an approved or pending immigrant visa petition. Adjustment of status is the process through which eligible foreign nationals who are in the U.S. apply for lawful permanent residence. Not all foreign nationals present in the U.S. are eligible to apply for adjustment of status so it is important to speak to an experienced immigration attorney before applying. You may file an application for adjustment of status directly with the Immigration Court. You may also request the Immigration Court reconsider an application for adjustment of status that was denied by USCIS.

Typically, you can only apply for adjustment of status in removal proceedings if you are married to a United States citizen, an arriving alien, an abused spouse (i.e. VAWA self-petitioner), or a special immigrant juvenile (i.e. SIJ), or are grandfathered under INA § 245(i). To be grandfathered under INA § 245(i), you must meet the following criteria:

• Were the beneficiary of an immigrant visa petition (i.e. a Form I-130 or Form I-140) or application for labor certification (i.e. Form ETA-750) filed on or before April 30, 2001;
• Were physically present in the United States on December 21, 2000, if you were the principal beneficiary on an immigrant visa petition or application for labor certification was filed between January 15, 1998 and April 30, 2001;
• Are the beneficiary of an immigrant visa petition (i.e. an approved Form I-130 or Form I-140;
• Have an immigrant visa immediately available to you; and
• Are otherwise admissible to the United States.

It is not enough to be the beneficiary of an immigrant visa petition (i.e. a Form I-130 or Form I-140) or application for labor certification (i.e. Form ETA-750) filed on or before April 30, 2001. You must show the immigrant visa petition (i.e. a Form I-130 or Form I-140) or application for labor certification (i.e. Form ETA-750) was “properly filed”, means it was signed and submitted with the correct fees, and “approvable”, which means it was meritorious and “non-frivolous”, when filed. You may also be grandfathered under INA § 245(i) if you are or were the spouse or child of a foreign national who is or was grandfathered.

You may find yourself being prevented from becoming or remaining a lawful permanent resident (i.e. green card) if you have been convicted of a crime, made false statements, or submitted fraudulent documents to gain an immigration benefit. You may not even realize you are barred from becoming a lawful permanent resident (i.e. green card) until USCIS or Immigration Judge tells. The good news is that you may be able to apply for a waiver. Whether you are eligible for a waiver depends upon your immigration and/or criminal history. For example, you are not eligible for a waiver if you committed marriage fraud or filed a frivolous asylum application.

You can apply for a “hardship” or “I-601” waiver in removal proceedings. You can also request an Immigration Judge reconsider a “hardship” or “I-601” waiver that was previously denied by USCIS. The Immigration Judge will determine if you should be granted a waiver. A “hardship” or “I-601” waiver is based on “extreme hardship" to your qualifying relatives. Not all relatives are considered qualifying relatives. Typically, only your U.S. citizen or lawful permanent resident spouse or parent(s) are considered qualifying relatives. Extreme hardship refers to the hardships your qualifying U.S. citizen or lawful permanent resident (i.e. green card holder) relative(s) would suffer if you are removed from the United States. Whether you can show your qualifying relative will suffer extreme hardship will depend upon your family’s circumstances. Extreme hardship includes the hardships your qualifying relative(s) will suffer if forced to leave the United States with you and the hardships your qualifying relative(s) will suffer if he/she/they remain in the United States without you. The normal difficulties associated with family separation are not sufficient to establish extreme hardship.

Factors to be considered when assessing hardship include, but are not limited, to:

• Family ties to the United States and impact of separation;
• Economic detriment;
• Difficulties in adjusting to life in your home country;
• Quality and availability of educational opportunities in your home country;
• Inferior quality of medical services and facilities in your home country especially if your relative has health conditions;
• Psychological impact of relocation or separation;
• Ability of your relative to pursue his/her chosen employment in your home country; and
• Country conditions in your home country.

A “hardship” or “I-601” waiver is discretionary, which means that even if you are eligible your application must warrant a favorable exercise of discretion. This means that to be granted such relief you must demonstrate your positive factors outweigh the adverse factors present in your case. Positive factors include, but are not limited to, the following:

• Your family ties to the United States;
• Your involvement in the community;
• Your reformation and rehabilitation if previously convicted of a crime;
• The passage of time since any criminal conviction(s);
• Your employment history; and
• Hardship to your family.

Adverse factors that will weigh against granting your application include, but are not limited to, the following:

• Your criminal record, if any, including the nature, recency and seriousness of your crimes;
• Whether you have other significant violations of immigrations laws; and
• Other evidence that supports shows you possess bad character or otherwise undesirable as a lawful permanent residence.

Under former INA § 212(c) you could apply for a waiver of inadmissibility or deportability if you were a lawful permanent resident (i.e. green card holder) and have been convicted of certain crimes so long as you have resided in the United States for at least 7 years and had not served more than 5 years in prison for an aggravated felony as defined by INA § 101(a)(43). Unfortunately, former INA § 212(c) was repealed as of April 1, 1997 and replaced with cancellation of removal. Cancellation of removal is not available to you if you have been convicted of an aggravated felony.

You may be wondering why we are discussing former INA § 212(c) if it was repealed more than 20 years ago. There are some people who remain eligible for former INA 212(c) relief. The Supreme Court’s decision in INS v. St. Cyr, 553 U.S. 289 (2001) held this repeal did not apply to you if you pleaded guilty to a crime that made you inadmissible or deportable before April 1, 1997. In the Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014), the Board of Immigration Appeals (BIA) extends the continued availability of relief you to apply for relief under former INA § 212(c) even if you were convicted of a crime at trial before April 1, 1997. Relief under former INA § 212(c) is a valuable form of relief for those with old convictions for often serious criminal conduct such as drug-related offenses.

You can request a waiver under INA 212(c) as a defense to removal in proceedings before the Immigration Court. Relief under former INA § 212(c) is discretionary, which means that even if you are eligible your application must warrant a favorable exercise of discretion. This means that to be granted such relief you must demonstrate your positive factors outweigh the adverse factors present in your case. Positive factors include, but are not limited to, the following:

• Your family ties to the United States;
• Duration of your residence in the United States;
• Your involvement in the community including community service beyond what may have been imposed by the court;
• Your reformation and rehabilitation;
• The passage of time since your criminal conviction;
• Your employment history; and
• Potential hardship to your family members if the waiver is not granted.

Adverse factors that will weigh against granting your application include, but are not limited to, the following:

• Your criminal record, including the nature, recency and seriousness of your crimes;
• Whether you are removal under any other grounds and if yes, the nature and circumstances underlying such grounds of removal;
• Whether you have other significant violations of immigrations laws; or
• Other evidence that supports shows you possess bad character or otherwise undesirable as a lawful permanent residence.

When a couple has been married for less than two years at the time the foreign national becomes a lawful permanent resident, he/she is granted such status conditionally. This means that instead of receiving a permanent resident card valid for ten years your permanent resident card is only valid for two years. You are entitled to all the same rights and privileges as someone who has a ten-year permanent resident card. You simply need to file a Form I-751 prior to the expiration of your two-year permanent resident card. Failure to timely file your Form I-751 may result in your losing your permanent residence and your being placed in removal proceedings. You may also be placed in removal proceedings if USCIS denies your Form I-751.

You may “remove” the conditions on your lawful permanent residence if:

• You are still married to the same U.S. citizen or permanent resident after 2 years. Your children who also received lawful permanent residence through your marriage can be included on your petition if they received their conditional resident status at the same time or within 90 days of you. Otherwise, your child must file his/her own petition.
• You are a widow or widower who entered into your marriage in good faith that ended because of the death of your spouse.
• You entered into a marriage in good faith, but the marriage unfortunately ended through divorce or annulment.
• You entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship at the hands of your U.S. citizen or lawful permanent resident spouse.

If you are placed in removal proceedings before the Immigration Court, you can request the Immigration Judge to review the Form I-751 denial. If you and your spouse filed a Form I-751 jointly, the U.S. Department of Homeland Security’s trial attorney has the burden of proving to the Immigration Judge by a preponderance of the evidence that your marriage was not entered in good faith. The trial attorney must file a copy of the administrative proceeding, which includes the Form I-751, Petition to Remove Conditions filed with USCIS, all supporting documents that you previously filed with USCIS, and a copy of USCIS’s decision denying your Form I-751. The USCIS officer who interviewed you and your spouse may also be called to testify before the Immigration Court. You may testify before the Immigration Court as well as call other witnesses and submit additional evidence to convince the Immigration Judge the conditions on your residence should be removed.

Adjudication of a jointly filed petition to remove conditions (i.e. Form I-751) is based strictly on the facts. There is no discretionary component. The Immigration Judge weighs the facts and information to determine whether the marriage was entered in good faith. If the Immigration Judge finds the marriage is bona fide, then he/she must remove the conditions on your residence. However, the Immigration Judge finds you did not enter your marriage in good faith, your conditional permanent resident status shall be terminated. On the other hand, adjudication of a Form I-751 seeking a waiver of the joint filing requirement is a discretionary determination. The Immigration Judge will determine what evidence is credible and decide what weight to give the evidence submitted by both you and the U.S. Department of Homeland Security.

If you previously jointly filed your Form I-751 with USCIS and you have since divorced, you will need to file a new Form I-751 with USCIS seeking a waiver of the joint filing requirement. This Form I-751 waiver request must be filed with USCIS even if you are currently in removal proceedings before the Immigration Court. This is because the Immigration Judge does not have the authority to adjudicate a petition to remove conditions. An Immigration Judge only has the authority to review a Form I-751 that has been denied by USCIS.

It is imperative that you file this new Form I-751 right away, because you will need to request that the Immigration Judge postpone hearings to allow USCIS to make an initial decision on your petition to remove conditions. If USCIS approves your petition to remove conditions seeking a waiver of the joint filing requirement, the Immigration Judge will terminate your removal proceedings. If USCIS denies your petition to remove conditions seeking a waiver of the joint filing requirement, the Immigration Judge will conduct an Individual Merits Hearing to reconsider the decision.

You may be able to request voluntary departure if you wish to depart the United States using your own money. A grant of voluntary departure allows you to depart the United States by a date set by the immigration judge. Voluntary departure allows you time to close bank accounts, terminate leases, sell real estate and other personal property, spend time with friends and family, make arrangements to transport personal items outside the United States, and make living arrangements outside the United States before you have to depart the United States. You can be granted up to 120 days to depart the country.

If you depart the United States as directed, you will not have an order of removal on your record. Voluntary departure is typically a better option than being ordered removed. However, if you fail to there are significant consequences if you fail to depart the United States by the date set by the immigration judge. You should not request voluntary departure unless you actually intend to depart and have the means to do so. If you fail to depart the United States in compliance with your voluntary departure, you face the following consequences:

• You may be required to pay a civil monetary penalty;
• You will be subject to an automatic 10-year bar to future immigration benefits for which there is no waiver; and
• You will automatically be subject to an order of removal.

Eligibility for voluntary departure varies depending upon whether the request is made at a Master Calendar Hearing or after your removal proceedings have been concluded. However, you generally need to be able to show the following:

• You have not been convicted of an aggravated felony;
• You have a valid passport or other travel document;
• You have the financial ability to depart the country; and
• You have the intent to depart the United States in compliance with the immigration judge’s order.

Appeals to the Board of Immigration Appeals

If the immigration judge has denied your application(s) for relief from removal and ordered your removal from the United States, you may file an appeal with the Board of Immigration Appeals (i.e. BIA). You may also appeal an immigration judge’s decision regarding your request for a custody redetermination (i.e. release from ICE custody on bond). It is important to note that the Department of Homeland Security also has the right to appeal the immigration judge’s decision if you are granted relief or set a good bond. This means that you need to be prepared to appeal to the BIA if you win or lose your case.

You must reserve your right to appeal (i.e. tell the immigration judge you want to file an appeal). Once you reserve your right to appeal, you have 30 days from the date the immigration judge ordered your removal to file a Notice of Appeal with the Board of Immigration Appeals. If you decide not to file a Notice of Appeal, the immigration judge’s decision will become a final order after and if you were denied relief from removal, you can be deported from the United States at any time after the 30 days has run.

When you file an appeal, you must identify errors made by the immigration judge. You will be given an opportunity to file a written brief in support of your appeal. Your brief is a written argument explaining in detail why you think the immigration judge’s decision was wrong. It is extremely important that you raise and discuss all the issues presented in your case. While your appeal is pending, you have the right to remain in the United States.

The Board of Immigration Appeals may reverse the immigration judge’s decision, may agree with the immigration judge’s decision, or send your case back to the immigration judge for further proceedings. If the BIA affirms the immigration judge’s decision, you may have the right to file a petition for review with the U.S. Court of Appeals with jurisdiction over the place where your removal proceedings were conducted. You must file a petition for review within 30 days of the BIA’s decision.

Motions to Reconsider

A motion to reconsider is an important tool if you feel the Immigration Judge (i.e. IJ) or Board of Immigration Appeals (i.e. BIA) incorrectly applied the law, existing facts, and/or procedure. For example, a motion to reconsider is appropriate where the IJ or BIA overlooked a crucial fact or held you to a higher burden of proof than required by law. If, on the other hand, you wish to present new facts or circumstances, you must file a motion to reopen.

You have the right to file one motion to reconsider. In general, a motion to reconsider must be filed within 30 days of the date the Immigration or BIA issued its decision. You must specify the errors of law, fact, or procedure in the decision you are challenging. You must also cite appropriate statutes and case law to support your position as well as identify the errors in the administrative record. You can also file a motion to reconsider if there has been a change in the law. In such circumstances, you must identify the specific changes of law and how it applies to the existing facts.

Motions to Reopen

A motion to reopen is an important tool if you have been ordered removed. A motion to reopen allows you to ask the immigration judge or Board of Immigration Appeals (i.e. BIA) to consider new or changed facts that either did not exist or were not known to you at the time you were last before the Immigration Court. Some common grounds for seeking reopening of your removal or deportation proceedings include:

• Country conditions have worsened in the country to which you have been ordered removed or deported making it unsafe for you to return;
• Ineffective assistance of your prior attorney, which prejudiced your case; or
• Legal and/or factual arguments that you are not/were not deportable as charged or are eligible for relief based on newly vacated convictions, changes in personal circumstances that impact eligibility for relief, violations during your original removal or deportation proceedings that impacted your ability to challenge removability or apply for relief, or new case law that affects your removability or eligibility for relief from removal.

You have the right to file one motion to reopen. A motion to reopen must typically be filed within 90 days of the order of removal or deportation. However, this deadline can be excused if equitable tolling is warranted, country conditions have changed and you fear harm in the country to which you have been ordered removed or deported, you have been subjected to battery or extreme cruelty by a United States citizen or lawful permanent resident, the immigration judge or BIA decides to use its own authority to reopen a case, or you and the Department of Homeland Security agree the removal or deportation proceedings should be reopened.

When you file a motion to reopen with either the Immigration Court or Board of Immigration Appeals, you must state the new facts that you will prove if you are granted a new hearing. Your motion to reopen must be supported by affidavits and other evidence. This evidence must be material and not have been previously available to you during your previous removal or deportation proceedings before the Immigration Court.

If you are seeking to reopen your removal proceedings to file a new application for relief from removal, you must include a copy of the application you intend to file in the reopened removal proceedings along with supporting documentation to show you are prima facie eligible for the relief requested.

When the immigration judge or BIA reopens a removal or deportation proceeding, the existing removal or deportation order is vacated.

If you who have been removed from the United States, you are barred from returning to the United States until you have stayed outside the U.S. for a specific period of time:

• You are barred for a period of 5 years if you were removed through expedited removal proceedings, which are typically conducted upon your arrival to the United States;
• You are barred for a period of 10 years if you were ordered removed after a removal hearing or you departed the United States while you had an order of removal outstanding against you; or
• You are barred for a period of 20 years if you have been removed 2 or more times.

The good news is that you may be eligible to return to the United States sooner. You may file a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal (i.e. Form I-212, I-212 waiver, or permission to reapply) if you want to return to the United States before staying outside the United States for the required period of time. This is essentially asking the United States Government to allow you to return to the United States sooner rather than later.

Whether you should be granted permission to reapply for admission after deportation or removal is a discretionary decision. USCIS has broad discretion to grant or deny a Form I-212. This means USCIS will weigh the positive and negative factors to determine whether your request should be granted. Positive factors weighing in favor of granting your request to return to the United States early include, but our not limited to, the following:

• The reason why you were deported or removed from the United States;
• The recency of your deportation or removal;
• Your length of residence in the United States and immigration status during that period of residence;
• Your family ties to the United States;
• Evidence of your good moral character;
• Your respect for law and order;
• Evidence of your reform and rehabilitation, especially if you have a criminal record;
• Hardship to your family members who are lawful permanent residents (i.e. green card holders) and United States citizens;
• Whether you are the beneficiary of an approved immigrant or nonimmigrant visa petition;
• Your eligibility for a waiver of any other inadmissibility grounds that may be present; and
• A lack of significant undesirable or negative factors.

Negative factors weighing against granting your request to return to the United States include, but our not limited to, the following:

• Your criminal history as including involvement in any continuing unlawful activity;
• Your repeated violations of immigration laws or your willful disregard of other laws;
• Your likelihood of becoming a public charge if allowed to return to the United States;
• You poor physical or mental condition especially as it relates your likelihood to become a public charge;
• Lack of any close family ties to the United States;
• Your family members who are lawful permanent residents (i.e. green cards holders) or United States citizens are not or would not experience any hardship;
• Your entry into prior marriages believed to have been entered into to obtain an immigration benefit (i.e. marriage fraud);
• Your unauthorized employment in the United States; and
• Any other grounds of inadmissibility into the United States.

You may be able to file a Form I-212 before departing the United States. You are able to file a provisional Form I-212 if you will also be applying for a provisional unlawful presence waiver (i.e. Stateside Waiver or I-601A Waiver) and pursuing an immigrant visa through consular processing.