(PAUL CHOI is an immigration attorney, a frequent author of articles on immigration law and a professor of law in California. He will answer all immigration questions for free. Address questions to firstname.lastname@example.org or to Paul Choi, 16000 Ventura Blvd, Ste. 1201, Encino, CA. 91436 or at 818 714-2226. PHILIP ABRAMOWITZ is the administrator of the law office. He can be reached at 818 324-8110.)
QuestionÂ I was petitioned by my wife for permanent residence because she is a U.S. citizen.Â However, before we went to the interview at the USCIS, we had some arguments and fights and my wife moved out.Â At the time of the interview at the USCIS, my wife came with me but when the officer asked her questions about our living arrangements her answers did not match mine because we have been separated.Â The officer became suspicious and pressured my wife to withdraw the petition for me or risk getting arrested.Â She got scared and signed something cancelling my petition.Â I just now received a notice for a removal hearing next month. I am very scared and donâ€™t know what to do.Â I am still married but now we are living together and my wife is sorry for withdrawing my petition.Â Can I save my case and stop my deportation?Â What are my chances?Â What should I do?
Is there any hope for my case?Â Do I have to leave the country?
Answer:Â Â Despite the recent news that the USCIS is exercising what is called prosecutorial discretion to cancel some deportation cases, the truth remains that the Dept. of Homeland Security is still actively commencing removal hearings against person who are out of status and have come to the attention of the government.Â The best way to come to the attention of the Dept of Homeland Security as an illegal alien is either to get arrested for a crime or to file an application for an immigration benefit and have that benefit denied.Â When you filed for permanent residence based upon your marriage, you were given an alien number and a file was opened for you at the USCIS.Â Congratulations. You are now on the radar of the USCIS and you are on their computers. If your application for permanent residence gets denied, the USCIS has the right to start proceedings to have your removed, (deported.)
Deportation, thankfully ,is not automatic. You have the right in almost every case to a hearing before a judge before anything can be done to move you from this country. At this hearing, you have the right to be represented by an attorney of your choice but at your own expense. (Unlike criminal cases, you do not have the right to appointed free counsel.)Â You or your attorney if you have one, has the right to have the charges read to you and you have the right to agree to the charges or to deny or refute them.Â You also have in many cases the right to a defense against deportation and these defenses, thankfully, are many.
Among the defenses at the disposal to immigrants facing removal is the right to apply for adjustment of status through marriage to a citizen or through any other petition that would make you immediately eligible to adjust status. (For example a petition by an adult son or daughter who is a citizen of the U.S.)Â You have the right to claim political asylum if you fear returning to your home country due to political, social or religious persecution.Â You have the right to apply for cancellation of removal should you have resided here for ten years in the case of a nonimmigrant, or less in the case of an immigrant or an abused spouse or child.
In your case, if you are still married to a U.S. citizen and your wife is willing and able to petition you again, you certainly may wish to consider applying for adjustment of status again.Â You may also wish to ask the government to exercise its discretion and terminate your deportation if you can show that your marriage is valid and that you are qualified to adjust your status to permanent resident. Rather than wasting the judgeâ€™s time the ICE attorney representing the government may well decide to agree to terminate charges against you and close your removal case allowing you to adjust status back before the USCIS.Â We have been very fortunate and successful in having the government attorney agree to terminate proceedings against many of our clients because they have shown eligibility to adjust status.Â This saves immigrants the time, cost and stress of appearing numerous times before a judge and being cross examined by the government and the judge.Â It makes sense all around to do this as it saves the alien time and money as well as saving the government resources and time.
In short, just because you have been issued a removal hearing notice does not mean the end of the line.Â There are many defenses that you can raise to stop your deportation and maybe even gain permanent residence.Â As in other legal matters, it is certainly a good idea in these cases to speak to a knowledgeable immigration attorney before going at it alone.Â We offer free consultation all the time to help people in times of need for this purpose.