There are many forms of relief from removal that may be available to you or your family member. Our firm has successfully represented many immigrants in their cases before the U.S. Immigration Court. Below is a list of some of the forms of relief available to you but remember, it is important to talk to an experienced immigration attorney. It is very difficult to succeed in immigration court without the help of a good attorney.
Cancellation of Removal
This form of relief is available to both lawful permanent residents and un-documented residents.
For lawful permanent residents, cancellation of removal may be granted if the individual:
- Has been a lawful permanent resident for at least 5 years;
- Has continuously resided in the United States for at least 7 years after having been lawfully admitted; and;
- Has not been convicted of an “aggravated felony.”
Cancellation of removal for un-documented residents may be granted if the alien:
- Has been continuously present for at least 10 years;
- Has been a person of good moral character during that time;
- Has not been convicted of an offense that would make him or her removable; and
- Demonstrates that removal would result in exceptional and extremely unusual hardship to his or her immediate family members (limited to the alien’s spouse, parent, or child) who are either U.S. citizens or lawful permanent residents.
An asylum applicant must demonstrate an inability to return to his or her home country because of past persecution or a well-founded fear of future persecution based upon his or her race, religion, nationality, membership in a particular social group, or political opinion. However, an alien may be ineligible for asylum under certain circumstances, including having failed to file an asylum application within an alien’s first year of arrival in the United States, being convicted of an aggravated felony, or having been found to be a danger to national security. Similar forms of relief are Withholding of Removal and applications under the United Nations Convention Against Torture. These cases are very difficult and are not given simply because the crime rate is high in your country. You need to show why it is more dangerous for you in particular because of your race, religion, nationality, political opinion, or membership in a particular social group.
Adjustment of Status
Aliens who have been previously admitted into the United States may be eligible to apply for adjustment of status while in removal proceedings. Several conditions must be met, including the alien must be admissible for permanent residence and an immigrant visa is immediately available at the time of application. Aliens who qualify for visas allowing an adjustment of status are often petitioned for by a spouse (or another family member) or an employer.
Prior to 1996, this was the most common form of relief from deportation available to residents who had been convicted of a crime. In 1996, Congress eliminated this form of relief and replaced it with cancellation of removal discussed above. You may still qualify for 212(c) relief if you meet the following criteria:
- You are a Lawful Permanent Resident and pled guilty to a crime (including an aggravated felony but not including a firearm offense) before 4/24/96;
- You have lived in the US for 7 years;
- The positive factors in your life outweigh the negative ones;
If you served a term of imprisonment of 5 years or more for one or more aggravated felonies, you may be ineligible for 212(c) relief.
This mainly applies for permanent residents who are re-entering the US after a trip abroad and were surprised that an old conviction is now making them inadmissible to the United States. It can also be used in conjunction with adjustment of status to overcome a criminal bar. If your criminal conviction is considered a “crime involving moral turpitude,” or prostitution ground of inadmissibility or if you have a single marijuana possession conviction involving less than 30 grams of marijuana, you may be eligible for a waiver pursuant to Section 212(h) of the INA. To be eligible for this waiver you must meet the following criteria:
- You have not been convicted of a drug offense (except for one time simple possession of 30 grams or less of marijuana);
- If you committed your crime more than 15 years ago or your crime was prostitution, you will need to show that you are rehabilitated;
- If your crime was committed less than 15 years ago and it did not involve prostitution, you will need to show that you have a spouse, parent, son or daughter who is a US citizen or LPR, and a denial of your admission would result in extreme hardship to them.
- If you are an LPR, you must have lived in the US for 7 years before your immigration case started.
Special Immigrant Juvenile Visa
Non-citizen children and some young adults who have been neglected, abused, or abandoned by a parent may be able to get a green card and overcome removal through “Special Immigrant Juvenile Status.” This is a relatively quick route to a green card for children who qualify. However, the process is complicated, and is best done with the help of an attorney. To qualify for Special Immigrant Juvenile Status:
- A juvenile court, family court, or similar state court must find that the child has been abused, neglected or abandoned. The court must either make the child a ward of the state (a “court dependent”) or place the child in the custody of a guardian, a state agency, or family member.
- The same court must also find that it is not in the child’s best interest to return to his or her home country.
This must be determined by a judge in a court in the state where the child lives, not by immigration officials. Once we get the court order, we can file a Form I-360. If that is approved, the case will usually be terminated before the immigration court and you will be allowed to get your permanent resident card through USCIS.
If you are a good person who has been in the United States for a long time and do not have a criminal record, but do not qualify for any other type of relief, Prosecutorial Discretion may be a very good option for you. In 2011, the Obama administration announced that it would more liberally use its “prosecutorial discretion” to focus more on deporting criminals rather than good hard working immigrants. If you are in deportation proceedings in immigration court, the one obvious benefit of prosecutorial discretion is that it might mean that you will not be deported and your immigration court case might be closed temporarily or permanently. You will not automatically receive other immigration benefits – such as work authorization – just because you receive prosecutorial discretion. Instead, you will have to independently qualify for any immigration benefit that you request.
In theory, anybody can get prosecutorial discretion. However, the more positive factors there are in your case, the better your chances. There are also cases where getting prosecutorial discretion is unlikely – for example where the applicant has a long and serious criminal history.
Voluntary departure is usually a last option. Many people want to seek this form of relief rather than receive an order of removal because it avoids the stigma of formal removal. It allows an otherwise removable alien to depart the United States at his or her own personal expense and return to his or her home country, or another country if the individual can secure an entry there. It is important to note that aliens granted voluntary departure must depart within the time specified by the Immigration Judge. Although an Immigration Judge has the discretion to set a shorter deadline, aliens granted voluntary departure prior to the completion of removal proceedings must depart within 120 days, and those granted such relief at the conclusion of removal proceedings must depart within 60 days. As with other forms of discretionary relief, certain individuals will be found ineligible for voluntary departure, and those granted voluntary departure who fail to depart are subject to fines and a 10-year period of ineligibility for other forms of relief.
Stay of Removal with ICE
A stay of removal is a decision made by Immigration and Customs Enforcement (ICE) to put off or “stay” a person’s removal from the United States. A person may apply for a stay of removal after she has been ordered removed from the United States by the Immigration Judge. ICE may grant a stay of removal for a variety of circumstances. The most common ones are medical. For example, the person who has been ordered removed may be the primary caretaker for a sick or aging United States citizen or resident parent. The person would request a stay of her removal so she can have sufficient time to make the necessary arrangements for the care of her parent after her departure. This is generally the last option. When there is nothing else, we can apply for a stay of removal with ICE and see if they would be willing to allow you to stay.
Each of these forms of relief is complicated and require the help of an immigration attorney. Contact us today to see if we can help you during this very stressful period of your life.
Law Office of Nathan Christensen P.C. | Immigration Services Dallas Area (972) 885-6625