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Types of Deportation Defenses 

Criminal convictions may have serious immigration consequences. Cases with criminal elements must be handled with increased attention and by an experienced attorney. The misclassification plea to certain criminal charges may result in deportation.  

There are several defenses that may be raised during deportation proceedings; including cancellation of removal, asylum, and adjustment of status. The effect of criminal convictions is different for each form of relief.  

The attorneys at Skinner Law Firm are especially knowledgeable about the effects of criminal convictions on removal cases. They will fight to achieve the best possible result in your case. 

If you or a loved one has criminal issues and is facing removal, it is important to seek out the services of an attorney experienced in both criminal defense and deportation defense. Call today at (610) 436-1410 to set up a consultation in our offices in West Chester in Chester County, PA. 

At Skinner Law Firm, we represent people on both criminal and immigration matters throughout the Philadelphia and surrounding suburban areas, including Berks, Bucks, Chester, Delaware, Lancaster, Montgomery, and York Counties. From our offices in West Chester in Chester County, we represent clients throughout the tristate area before the Immigration Courts in Philadelphia, York and beyond.  

Cancellation of Removal 

Cancellation of removal is a potential defense available to both lawful permanent residents (“LPR”) and non-permanent resident respondents in removal proceedings. The eligibility requirements for lawful permanent residents and non-permanent residents are different; therefore, criminal convictions affect non-permanent residents differently than permanent residents. 

Cancellation of Removal for Certain Nonpermanent Residents 

Cancellation of removal is a highly attractive form of relief, because, if granted, a respondent becomes a lawful permanent resident. As a result, most criminal convictions bar nonresidents from cancellation eligibility. A nonresident applicant for cancellation of removal cannot at any time be convicted of the following: 

  • Crime involving moral turpitude; 

  • Aggravated felony; 

  • Conviction involving controlled substances; and 

  • Certain firearm offenses 

Cancellation of Removal for Lawful Permanent Residents 

Determining whether a criminal record eliminates cancellation eligibility is more complex for lawful permanent residents. The effect of a criminal conviction on cancellation eligibility is two-fold. One of the general requirements of cancellation eligibility is seven years of continuous presence in the United States. A permanent resident’s continuous presence ceases to accrue if convicted of the following: 

  • Crime involving moral turpitude; or 

  • Conviction involving controlled substances 

If the nonresident is convicted of one of the aforementioned offenses, he or she is ineligible for cancellation of removal. However, if the nonresident accrues the seven years of continuous presence after being admitted, only an aggravated felony conviction can preclude eligibility.  

It is important to note that although a criminal conviction may not bar you from qualifying from cancellation of removal, the immigration judge may still deny the application because of a criminal record. Cancellation of removal is a discretionary form of relief. A criminal conviction will likely be a negative factor weighed against the positive factors in the case. It is imperative to have an experienced attorney present your case for cancellation of removal. 

Asylum 

Asylum is a removal defense available to foreign nationals who have endured persecution or fear persecution in his or her home country based on particular characteristics. If granted asylum, one may eventually adjust to permanent resident status. Consequently, most criminal convictions (committed in the U.S. and/or abroad) bar an asylum applicant from relief. The following convictions bar a foreign national from relief: 

  • Aggravated felony; 

  • Assistance in the persecution of others; 

  • Serious non-political crime in home country; or 

  • Particularly serious crimes (Most aggravated felonies and crimes of violence are considered particularly serious crimes.) 

Even if a criminal conviction does not fit into one of the aforementioned categories, it may still negatively impact the asylum case. The immigration judge will weigh the positive factors and negative factors in the case to determine whether a grant of asylum is warranted. It is important to have a skilled lawyer present your case for asylum.  

Withholding of Removal 

Withholding of removal is a deportation defense similar to asylum. Immigration law prevents a foreign national from being removed to his or her home country if it can be established that more likely or not their life or freedom would be threatened on account of certain protected characteristics. A foreign national is barred from applying for withholding of removal if convicted of the following offenses: 

  • Particularly serious felony; 

  • Serious non-political crime in home country; or 

  • Assistance in the persecution of others 

An aggravated felony conviction does not automatically bar an applicant from withholding of removal eligibility. An aggravated felony conviction destroys eligibility only if the applicant was sentenced to more than five years imprisonment, irrespective of the time served.  

Voluntary Departure 

Voluntary departure differs from other forms of deportation defense. Voluntary departure is considered “best alternative” for individuals who do not qualify for any form of relief or are unsuccessful in their claim. Voluntary departure allows an individual to be removed from the United States without receiving a formal order of deportation. This is beneficial because the individual is not automatically barred from admission to the United States for a certain number of years.  

Voluntary departure is classified as either pre-hearing or post-hearing. The two classifications have different eligibility requirements. An experienced attorney should be consulted, as each classification has different immigration consequences.  

The following criminal offenses eliminate eligibility for pre-hearing voluntary departure: 

  • Aggravated felony; 

  • Offenses that indicate security risk 

Crimes or offenses that indicate an individual is a security risk are not clearly defined by the courts. This determination is generally made by the immigration judge. 

Criminal convictions affect post-hearing voluntary departure eligibility in a different way. A requirement for post-hearing voluntary departure is five years of good moral character before being placed in removal proceedings. Good moral character is a factual determination, which any criminal conviction may negatively impact. The determination of good moral character is made by the immigration judge by weighing the positive and negative factors of the case. 

Finding an Immigration Attorney 

The immigration process is very complex, particularly when you have a criminal conviction. It is important to have an advocate who is knowledgeable and experienced in criminal law and immigration law.  

At Skinner Law Firm the attorneys have years of experience in criminal and deportation defense in West Chester for Chester County, PA. The attorneys will work hard to achieve the best possible result in your case.  

Call Skinner Law Firm today at (610) 436-1410 to set up a consultation.  

 

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