U.S. Immigration Services (Deportation Proceeding and Asylums), Law Offices of Dixon Fung, P.C.

Deportation Proceeding and Asylums

What Triggers the Start of a Deportation Proceeding?

Certain situations may lead to the beginning of a deportation proceeding against an alien. The following section explains what will trigger a deportation proceeding.

Entry Without Inspection (EWI)
When you enter the United States without first being inspected by an immigration officer, you have violated U.S. immigration law and are subject to a deportation proceeding.

Overstaying Authorized Stay
When you first enter the United States, you must fill out an arrival/departure record (I-94) and be inspected by an immigration officer. The officer will in turn put a stamp on your I-94 and specifies how long you are allowed to stay in the United States. If you do not depart the United States on or before the specified date, you are subject to a deportation proceeding.

Violating Non-immigrant Status
You have violated your immigration status when you engage in unauthorized acts. For instance, if you are a F-1 student but work outside of your institutional campus without prior authorization, you have violated your non-immigrant status and are subject to deportation.

Grounds and Possible Defenses in Deportation Proceeding
A deportation proceeding is initiated by a Notice to Appear (NTA) issued by the Department of Homeland Security. Being placed in a deportation proceeding does not mean the end of the road; the law provides certain defenses to you in your deportation proceeding. If you meet your burden of proof, or duty, and show all the elements of a particularly defense, you may be relieved from deportation and stay in the United States.

Citizenship
If you can prove your U.S. citizenship, you will not be deportable.

Cancellation of Removal (Section 240A of Immigration and Nationality Act)
Section 240A(a) of the Immigration and Nationality Act (INA) states that a permanent resident may be allowed to stay in the United States if the resident alien may show that he/she: (1) has been lawfully admitted as a permanent resident for not less than 5 years; (2) has resided in the United States continuously for 7 years after having been admitted in any status; and (3) has not been convicted of any aggravated felony.

Section 240A(b) of the INA provides a slightly different standard for non-resident aliens. A non-resident alien may request for a cancellation of removal if the alien can show that he/she: (1) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (2) has been a person of good moral character during such period; (3) has not been convicted of a crime of moral turpitude; and (4) can show that removal would result in exceptional and extremely unusual hardship to the alien?冱 spouse, parent, or child, who is a citizen or permanent resident of the United States.

Adjustment of Status
Immediate relatives of a U.S. citizen may apply for adjustment of status during deportation proceeding, even though they may have violated other immigration law. Spouses, unmarried children who are younger than 21, and parents of U.S. citizens who are 21 years old or older are considered immediate relatives.

Asylum
Section 208 of the INA lays out the standard for applying asylum. You may file an asylum application within one year of entry to the United States, unless you can show that there is a change of circumstances in your home country. You must show that you have a well-founded fear of persecution in you home country based on one of the five grounds: (1) race; (2) religion; (3) nationality; (4) political opinion; or (5) membership in a particular social group.

Withholding of Removal
Section 241(b)(3) provides another relief to removal from deportation proceedings, which relief is called withholding of removal. You must show that your life or freedom would be threatened if you are deported to a particular country because of your race, religion, nationality, membership in a particular social group, or political opinion. Although the elements of withholding of removal look very similar to asylum, it does not provide a path to permanent residency or citizenship.

Convention Against Torture
Section 208.18 of Title 8 of the Code of Federal Regulation (C.F.R.) provides a relief from deportation based on the Convention Against Torture (CAT). If you can show the following four elements:

(1) you will suffer from severe physical or mental pain;
(2) the infliction of pain is intentional;
(3) the pain is inflicted for the purpose of;
     (i) obtaining information of a third-party or a confession from you;
     (ii) punishing you or a third party for either a convicted or suspected crime;
     (iii) intimidating or coercing you or a third party; or
     (iv) any reason based on discrimination of any kind;
(4) the infliction of pain is done by the consent or acquiescence of a government official.

Relief from CAT can be permanent (withholding of removal) or temporal (deferral of removal).

Useful Resources

USCIS Immigration Forms
Visa Application Forms
Study materials for new natrualization test
Your case status with USCIS
Processing time of your case with USCIS
Department of State's Visa Bulletin

Information on this page does not constitute as legal advice. For specific inquiries, please contact us and schedule for a consultation.

How can we help? Call for a Free Consultation (626) 817-2522



PERMANENT VISAS NON-IMMIGRANT VISAS NATURALIZATION	Deportation Proceeding and Asylums What Triggers the Start of a Deportation Proceeding? Certain situations may lead to the beginning of a deportation proceeding against an alien. The following section explains what will trigger a deportation proceeding. Entry Without Inspection (EWI) When you enter the United States without first being inspected by an immigration officer, you have violated U.S. immigration law and are subject to a deportation proceeding. Overstaying Authorized Stay When you first enter the United States, you must fill out an arrival/departure record (I-94) and be inspected by an immigration officer. The officer will in turn put a stamp on your I-94 and specifies how long you are allowed to stay in the United States. If you do not depart the United States on or before the specified date, you are subject to a deportation proceeding. Violating Non-immigrant Status You have violated your immigration status when you engage in unauthorized acts. For instance, if you are a F-1 student but work outside of your institutional campus without prior authorization, you have violated your non-immigrant status and are subject to deportation. Grounds and Possible Defenses in Deportation Proceeding A deportation proceeding is initiated by a Notice to Appear (NTA) issued by the Department of Homeland Security. Being placed in a deportation proceeding does not mean the end of the road; the law provides certain defenses to you in your deportation proceeding. If you meet your burden of proof, or duty, and show all the elements of a particularly defense, you may be relieved from deportation and stay in the United States. Citizenship If you can prove your U.S. citizenship, you will not be deportable. Cancellation of Removal (Section 240A of Immigration and Nationality Act) Section 240A(a) of the Immigration and Nationality Act (INA) states that a permanent resident may be allowed to stay in the United States if the resident alien may show that he/she: (1) has been lawfully admitted as a permanent resident for not less than 5 years; (2) has resided in the United States continuously for 7 years after having been admitted in any status; and (3) has not been convicted of any aggravated felony. Section 240A(b) of the INA provides a slightly different standard for non-resident aliens. A non-resident alien may request for a cancellation of removal if the alien can show that he/she: (1) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (2) has been a person of good moral character during such period; (3) has not been convicted of a crime of moral turpitude; and (4) can show that removal would result in exceptional and extremely unusual hardship to the alien?冱 spouse, parent, or child, who is a citizen or permanent resident of the United States. Adjustment of Status Immediate relatives of a U.S. citizen may apply for adjustment of status during deportation proceeding, even though they may have violated other immigration law. Spouses, unmarried children who are younger than 21, and parents of U.S. citizens who are 21 years old or older are considered immediate relatives. Asylum Section 208 of the INA lays out the standard for applying asylum. You may file an asylum application within one year of entry to the United States, unless you can show that there is a change of circumstances in your home country. You must show that you have a well-founded fear of persecution in you home country based on one of the five grounds: (1) race; (2) religion; (3) nationality; (4) political opinion; or (5) membership in a particular social group. Withholding of Removal Section 241(b)(3) provides another relief to removal from deportation proceedings, which relief is called withholding of removal. You must show that your life or freedom would be threatened if you are deported to a particular country because of your race, religion, nationality, membership in a particular social group, or political opinion. Although the elements of withholding of removal look very similar to asylum, it does not provide a path to permanent residency or citizenship. Convention Against Torture Section 208.18 of Title 8 of the Code of Federal Regulation (C.F.R.) provides a relief from deportation based on the Convention Against Torture (CAT). If you can show the following four elements: (1) you will suffer from severe physical or mental pain; (2) the infliction of pain is intentional; (3) the pain is inflicted for the purpose of; (i) obtaining information of a third-party or a confession from you; (ii) punishing you or a third party for either a convicted or suspected crime; (iii) intimidating or coercing you or a third party; or (iv) any reason based on discrimination of any kind; (4) the infliction of pain is done by the consent or acquiescence of a government official. Relief from CAT can be permanent (withholding of removal) or temporal (deferral of removal).	Useful Resources USCIS Immigration Forms Visa Application Forms Study materials for new natrualization test Your case status with USCIS Processing time of your case with USCIS Department of State's Visa Bulletin
	Information on this page does not constitute as legal advice. For specific inquiries, please contact us and schedule for a consultation.
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How can we help? Call for a Free Consultation (626) 817-2522