Aggressive and thorough representation in Immigration and Criminal Defense

DEPORTATION / REMOVAL PROCEEDINGS

Grounds for Deportation:

The grounds for deportation can vary depending on whether the alien is a non-permanent resident or a permanent resident. Likewise, the bases for relief against removal depend on what status the alien has.

The usual grounds for being put into removal proceedings are or can be:

  1. having entered without inspection (crossing the border illegally),
  2. overstaying a non-immigrant visa like an F-1 student visa or B-2 tourist visa;
  3. committing or admitting to having committed any controlled substance violation;
  4. being convicted for certain criminal acts like
    • forgery;
    • theft, identity theft;
    • violation of protective order (if it involves the part of the protective order that protects against violence or threats of violence);
    • domestic violence (in Utah it must rise to the level of an aggravated assault conviction usually);
    • marriage fraud;
    • firearms violations;
    • murder;
    • child abuse, sex abuse, rape, sodomy;
    • etc.

An alien entered legally if he or she were inspected by an officer of the U.S. border patrol at the border or port of entry such as an airport, seaport, or bus station. People normally enter the U.S. legally using a valid non immigrant visa, including but not limited to tourist visa, student visa, temporary worker visa, student visa, temporary business visa, the Visa Waiver Program, etc.

Anyone who entered the U.S. without first being inspected by an officer of the U.S. border patrol is considered to have entered the US illegally. Technically, it is referred to as “Entry Without Inspection” or “EWI.”

If an alien has entered the U.S. unlawfully more than once, was deported at the end of a visit, and/or spent at least one year or more during your previous visits in unlawful status, s/he may be permanently barred from immigrating to the U.S. Consult an immigration attorney at Trupiano Law before proceeding any further.

One must be careful about immediately apply for a legal permanent resident card, often called a “green card” if the alien has just married a United States citizen. If there are grounds for the alien’s removal from the United States for committing certain criminal acts or immigration violations, s/he should consult with an attorney like immigration attorney Kimberly J. Trupiano before filing anything. Filing for immigration relief can sometimes trigger deportation / removal proceedings!

Also, if the alien entered the U.S. without inspection and file a Form I-130, when s/he attends the interview at the designated consulate his or her request to be admitted into the United States will likely be denied! There the alien – who is a loved one of many in the United States and desperately needed to come home to the U.S. – sits waiting possibly years to be allowed back in to join his or her U.S. citizen spouse and possibly children. The alien needs to have a waiver application prepared before he or she goes to the interview so that s/he can promptly submit it soon after the interview. If the alien leaves U.S., s/he would be barred from returning for 3 or 10 years, depending upon the length of unauthorized stay, unless s/he can obtain a waiver. The factors and evidence properly used for such a wavier packet is best put in the hands of an aggressive immigration attorney like Kimberly J. Trupiano.

If an alien remained in the United States unlawfully for six (6) months or longer since April 1, 1997, /she can qualify for a waiver based on a “qualifying relationship to a United States Citizen.” The factors for a waiver for prior unlawful presence (INA § 212(a)(9)(B)(v)) or misrepresentation (INA § 212(i)) requires evidence that “the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.” However, a waiver for having a criminal history (INA § 212(h)) requires evidence “that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.” Each consulate provides Form I-601 filers listing “acceptable” arguments that can be used. Although the guidelines are the same for all consulates, waiver approval rates differ between consulates since there is no standard for “extreme hardship.”

If an alien entered the U.S. lawfully but overstayed a visa, s/he can file an Form I-130 and Form I-485 together with his or her petitioning United States citizen spouse. However, if they have been married for less than two years, the alien will have to meet the burden of proof that their marriage is a real marriage. The factors and evidence properly used for such an evidentiary packet is best put in the hands of an aggressive immigration attorney like Kimberly J. Trupiano.

Relief against Removal:

Cancellation of Removal:

There are various forms of relief against removal. If an alien is a legal permanent resident, he or she might be eligible for cancellation of removal so long as he or she has been in the United States in lawful status for at least seven (7) years, has not committed any acts to violate his/her lawful immigrant status the first five (5) years of being a lawful permanent resident, and has not committed or been convicted of any aggravated felony.

If an alien is here on a temporary visa, he or she might be eligible for cancellation of removal if you can prove at a trial before an immigration judge the following:

1) Alien has been in the United States for at least ten (10) years (without trips of certain lengths breaking the ten-year presence);

2) Alien has good moral character;

3) Alien does not have certain restrictive convictions; and

4) Alien’s United States citizen spouse and/or child(ren) would suffer extreme and unusual hardship should the alien be deported.

Asylum-based and Convention against Torture Claims:

Other forms of relief include asylum, withholding of removal, and deferral of removal. These require a showing of credible fear of persecution upon return to the designated country for the asylum or a showing that it is more likely than not that the alien will be tortured if returned to the designated country.

Adjustment of Status:

An alien can adjust status in front of an immigration judge if he or she has an approved Form I-130. Sometimes, immigration judges will work with the attorney to give the attorney time to file the Form I-130 so that the immigration judge can then adjudicate the adjustment of status to a lawful permanent resident.

Post-conviction Relief:

Post-conviction relief to ease the adverse effects of certain criminal convictions can also be very helpful. For example, criminal and immigration defense attorney Kimberly J. Trupiano can move to withdraw involuntarily entered guilty pleas, move to amend a sentence to fewer days of incarceration to render it no longer an aggravated felony for purposes of immigration law, amend the conviction to render the conviction no longer a deportable offense (so long as the pleadings and order do not reflect that the amendment was for the purposes of avoiding immigration consequences). Since immigration attorney Kimberly J. Trupiano also practices in criminal defense, she has the unique skill set to work in the criminal case to avoid adverse immigration consequences.

Bailing out during Removal Proceedings:

If the alien has been convicted of any of the following, unfortunately he or she is likely not eligible for bail unless he or she has been detained pending the immigration proceedings for over two years. At that point, the United States Supreme Court has indicated the alien’s due process rights might be infringed. The following are criminal convictions or activity that would preclude an alien from being bondable for some time:

The Attorney General shall take into custody any alien who-

(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2)[1] of this title,

(B) is deportable by reason of having committed any offense covered in section 1227 (a)(2)(A)(ii)[2], (A)(iii)[3], (B)[4], (C)[5], or (D)[6], [7] of this title,

(C) is deportable under section 1227 (a)(2)(A)(i) of this title [see infra, n. 6] on the basis of an offense for which the alien has been sentence to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 1182 (a)(3)(B) of this title or deportable under section 1227 (a)(4)(B) [Terrorist activities] of this title . . . .

INA § 236(c); 8 U.S.C. § 1226(c).

Because the issue of whether an alien is bondable during the pendency of an immigration removal proceeding, it is important to hire aggressive and astute legal counsel. Kimberly J. Trupiano will fight to get the alien out on bail if there are any grounds to do so. If the alien has pled guilty but not yet been convicted of a crime other than drug related, if the alien was convicted of a crime but only sentenced to straight probation with no suspended jail or prison sentence, if the alien’s crime does not fall under the ones listed above, immigration defense attorney Kimberly J. Trupiano will put together a motion for bond hearing. This motion has exhibits attached that consist of letters, photos, and other evidentiary documentation to show that the alien is not a flight risk, not a danger to society, and qualifies for bail under INA § 236(a).

[1] “(a) Classes of aliens ineligible for visas or admission

Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States: . . ..

(2) Criminal and related grounds . . .” 8 U.S.C. § 1182(a)(2); INA § 212(a)(2).

[2] “(a)Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: . . .

[(2)(A) (ii)] Multiple criminal convictions Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(ii); INA § 237(a)(2)(A)(ii).

[3] “(a)Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: . . .

[(2)(A) (iii)] Aggravated felony Any alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii).

[4] “(a)Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: . . .

[(2)(B)] Controlled substances

(i) Conviction Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.

(ii) Drug abusers and addicts Any alien who is, or at any time after admission has been, a drug abuser or addict is deportable.” 8 U.S.C. § 1227(a)(2)(B).

[5] (6) Illegal entrants and immigration violators

***

(C) Misrepresentation

(i) In general Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.

[6] “(a)Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: . . .

[(2)(D)] Miscellaneous crimes Any alien who at any time has been convicted (the judgment on such conviction becoming final) of, or has been so convicted of a conspiracy or attempt to violate-

(i) any offense under chapter 37 (relating to espionage), chapter 105 (relating to sabotage), or chapter 115 (relating to treason and sedition) of title 18 for which a term of imprisonment of five or more years may be imposed;

(ii) any offense under section 871 [Threats against President and successors to the
Presidency] or 960 [Expedition against Friendly Nation]of title 18;

(iii) a violation of any provision of the Military Selective Service Act (50 App. U.S.C. 451 et seq.) or the Trading With the Enemy Act (50 App. U.S.C. 1 et seq.); or

(iv) a violation of section 1185 [Travel control of citizens and aliens] or 1328 [Importation of alien for immoral purpose]of this title,

is deportable.

[7] “(a)Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: . . .

(i) Crimes of moral turpitude Any alien who-

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255 (j) of this title) after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(i).