DEPORTABILITY : Immigration Law

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DEPORTABILITY

(Any alien in and admitted to the U.S. is removable—if present but not admitted, then inadmissible, not deportable)

1. Does a deportability ground apply?—237

    1. Has he committed a crime—p.37-38; 237(a)(2)
      1. Involving moral turpitude?
      2. An aggravated felony?
      3. Drug offense? (p.38)
      4. Of domestic violence?
    2. Was he inadmissible at the time of entry or of adjustment of status?—237(a); p.39
    3. Has he violated his status?—237(a); p.39
    4. Others—237
      1. Has he engaged in terrorist activities?
      2. Has he become a public charge?

2. Is there any relief available?

    1. WAIVERS
      1. Of deportability grounds—
        1. Smuggling—237(a)(1)(E)
        2. Certain misrepresentations—237(a)(1)(H)
        3. Document fraud—237(a)(1)(C)(ii)
      2. Of inadmissibility grounds—
        1. Of specific grounds
          1. Criminal—212(h)
          2. Fraud or willful misrepresentation of material fact—212(i)
          3. Smuggling aliens—212(d)(11)
          4. Unlawfully present—212(a)(9)(B)(v) (refers to those inadmissible under 212(a)(9)(B)(i))
        2. If inadmissibility ground was connected to battery or cruelty—
          1. Illegal entrants and immigration violators—212(a)(6)(A)(ii)
          2. Aliens unlawfully present—212(a)(9)(B)(iii)(IV)
      3. Victim of—
        1. Domestic violence?
          1. If connected to battery or cruelty—not deportable for certain crimes of domestic violence if not primary perpetrator—237(a)(7)
        2. Trafficking or criminal activity? (a.k.a. applicant for T or U visa)—237(d)(1)
    1. CANCELLATION OF REMOVAL—240A

(Grants LPR status to noncitizens subject to removal from the U.S.—available to noncitizens lawfully admitted and those who enter illegally)

      1. For LPRs
        1. A.G. may cancel removal if meet three prerequisites
          1. Residence
            1. Requirements
              1. Must’ve resided in U.S. continuously for 7 years after lawful admission
              2. Must’ve been an LPR for at least five years
            2. Measuring the time period—p. 39
          2. Not convicted of an aggravated felony
          3. Though extreme and unusual hardship isn’t a requirement, A.G. likely to take that into account as a discretionary element
      2. For nonpermanent residents
        1. Continuous physical presence in the U.S.—240A(d)(2)
        2. Good moral character
          1. Crimes of moral turpitude
        3. Exceptional and extremely unusual hardship
      3. For battered spouses or children (p.40)
        1. Continuous physical presence of three years
        2. Standard for hardship is “extreme,” rather than “exceptional and extremely unusual”
        3. Hardship to the applicant is relevant, not just hardship to applicant’s citizen/LPR parent or child
      4. Factors to take into account
        1. Matter of Gonzales Recinas (p.40)
          1. Heavy burden on parent to provide financial and familial support for many children if deported—lack of family to help in native country
          2. Children’s unfamiliarity w/ the native language
          3. Unavailability of alternative means of immigrating
    1. REVIEW OF DECISION
      1. No judicial review in determinations of—
        1. Most crime-related deportability grounds—212(h)
        2. Discretionary decisions
      2. Structure
        1. IJs can review certain decisions
          1. Asylum—“credible fear” determination
        2. BIA can review IJ decisions
        3. A.G. can review BIA decisions—very rare
        4. Certain specific types of appeals can be heard by Administrative Appeals Unit
      3. Reviewable decisions
        1. By habeas writ
          1. Deportation requires taking into custody, which allows for review in federal district court via habeas writ
          2. May appeal removal order to federal court of appeals
    1. PAROLE (p.34-35)

(When noncitizen is detained at the border and ruled inadmissible, but for some reason the government can’t or won’t deport her—not technically allowed “entry,” but allowed actual, physical presence in the U.S. temporarily)

      1. Does she meet one of the listed purposes? (p.35)