Under the Immigration and Nationality Act (“INA”), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”), “removal proceedings” are used to determine whether a non-U.S. citizen, should be deported from the U.S.
The removal process is a complicated procedure, from the initial notification that you’re being deported, all the way to the final order of removal. If you’re in the removal process now, or might be subject to the process in the future, you should contact a Tampa Deportation Attorney.
How the Deportation and Removal Process Starts
Usually, the removal process begins with the Department of Homeland Security (“DHS”) issuing you a Notice to Appear (“NTA”). This contains your name and the country in which you were born and orders you to appear before an Immigration Judge (“IJ”). It can contain other information, including:
- Why you’re being ordered to appear before the IJ
- How you allegedly broke the law
- Your right to have an attorney, who you’ll have to hire and pay for
- The consequences of your failure to appear at the hearing
If the information contained in the NTA is correct and the IJ determines you can be deported, you can apply for relief from removal. There will be another hearing if you are eligible for relief. If you’re not eligible, then the IJ will order your deportation.
Relief from Removal
There are several types of relief from removal that will allow you to stay in the U.S., including:
- Cancellation of Removal
- Adjustment of Status
Cancellation of removal is when the IJ cancels your deportation. The availability of this relief is different for a lawful permanent resident (LPR), such as an alien with a “green card,” than for a non-lawful permanent resident (non-LPR), such as an undocumented alien. If you’re an LPR, you’re eligible if:
- You’ve lived in the U.S. for 7 years straight after you were admitted to the country
- You’ve been an LPR for at least 5 years
- You’ve never been convicted of an aggravated felony, and you’re not a terrorist, crewman or exchange visitor, and
- You’ve never been granted cancellation of removal in the past
If you’re a non-LPR, you’re eligible if:
- You’ve been in the U.S. continuously for at least 10 years
- During that 10-year period, you were not served with an NTA and/or you didn’t commit certain crimes
- You were a person of “Good Moral Character” during the 10-year period
- You show that your removal would result in exceptional and extremely unusual hardship to your spouse, parent or child, and that the spouse, parent and/or child is either a U.S. citizen or a LPR
Adjustment of status is when an alien changes his or her status from non-immigrant to lawful permanent resident. In order to qualify for this relief, several conditions must be met, including:
- You must be admissible for permanent residence, that is, you’re not inadmissible under the INA, and
- An immigrant visa is immediately available for you at the time you apply for an adjustment of status. Aliens who qualify for visas allowing an adjustment of status often have petitions that were filed by a spouse or another immediate family member who’s a U.S. citizen or LPR, or an employer.
You aren’t eligible for adjustment of status in certain circumstances, including:
- You failed to appear at the removal proceedings after being served with a NTA
- You entered the U.S. illegally, that is, you were not interviewed by an immigration officer at the time you crossed the border
- You violated the restrictions on your temporary visa, like staying in the U.S. beyond the expiration date of your visa status
Asylum can be granted to an alien who qualifies as a “refugee.” Generally, you have to show an inability to return to your native country because of past persecution or a well founded fear of future persecution based upon your race, religion, nationality, membership in a particular social group or political opinion.
However, you’re generally not eligible for asylum if you didn’t file an asylum application within the first year after you entered the U.S., you have a conviction for an aggravated felony or the DHS considers you to be a danger to national security.
There are other types of relief that might be available to you if you’ve been ordered deported. So, it’s critical that you examine the INA completely, or seek the advice of a Tampa Immigration Attorney so that you know all of your options.