How
to Stop a Deportation or Removal Proceeding |
|
When
an Immigration Judge has found that an alien is illegally
present in the United States, it does not necessarily
mean that the person must be deported. The Immigration
Laws provides many types of ways to prevent Removal (deportation).
The most commonly used are (1) waivers of excludability
and deportability; (2) cancellation of removal for permanent
residents; (3) cancellation of removal for non-permanent
residents; (4) suspension of deportation; (5) adjustment
of status to permanent residence; (5) asylum and withholding
of deportation; (6) legalization and registry and, (7)
voluntary departure. |
Waivers |
The
immigration law lists various grounds by which an person
in the middle of a deportation proceeding may apply for
a Waiver. All the waivers available require that the alien’s
establish hardship to himself or to his close family members
if he were to be removed from the U.S. For example a person
who is being deported for certain criminal grounds may
be eligible for a waiver under §212(h) if the failure
to admit him to the U.S. would result in "extreme
hardship" to his LPR or USC spouse, parent(s), son(s)
or daughter(s)., Similarly a person who has committed
fraud or a material misrepresentation may apply for a
waiver under §212(i) if his deportation from the
U.S. would result in "extreme hardship" to his
lawful permanent resident (LPR) or U.S. citizen (USC)
spouse or parents. |
Cancellation
of Removal for Permanent Residents |
| A
grant of an Application for Cancellation Removal
has the effect of "pardoning" or "forgiving"
the basis for the alien's deportability and returning
his status to that of a lawful permanent resident. Only
certain grounds of deportability may be waived by a grant
of Cancellation of Removal. Moreover, under new immigration
laws, an alien is only eligible for one (1) grant of such
relief in a lifetime. A denial of an Application for Cancellation
of Removal results in an administrative order returning
the alien to his country of designation (citizenship,
nationality, or last residence) through a forcible order
effectuating his removal or deportation from the United
States
Note that
an Immigration Judge will balance certain positive factors
against negative factors in determining whether an alien
should be permitted to remain in the United States. In
the case of Permanent Residents, a granted application
will have the effect of allowing the lawful permanent
resident to maintain his status and remain in the United
States. In the case of Illegal Aliens, a granted application
will have the effect of allowing an undocumented alien
or nonimmigrant to become a permanent resident of the
United States. An Immigration Judge will consider such
factors as family ties, history of employment, community
service, long residency in the United States, property
& assets, criminal record, immigration violations,
rehabilitation & remorse, etc. Both types of applications
for Cancellation of Removal are discretionary in nature,
permitting an Immigration Judge to grant or deny the application
as he deems fit. Even if an alien can demonstrate all
of the above factors, this does not mean that an application
will be granted, only that he has demonstrated prima facie
(minimum standards for eligibility) eligibility.
This section of the law allows the Attorney General
(usually an Immigration Judge or the Board of Immigration
Appeals) to cancel the removal of a lawful permanent resident
from the U.S. if:
1. He has been
a Lawful Permanent Resident for a minimum of five years;
2. Has
resided continuously in the U.S. for a minimum of seven
years after being admitted to the U.S. in any status
(prior to the institution of removal proceedings);
3. He
has not been convicted of an aggravated felony;
4. He
is not inadmissible from the U.S. on security grounds.
The following
classes of persons are ineligible for cancellation of
removal:(1) Certain crewmen; (2) Exchange visitors (in
"J" status) who received medical training in
the U.S.; (3) Persons who have persecuted others; (4)
Persons who have previously been granted cancellation
of removal, suspension of deportation (See below.) or
relief under §212(c); and (5) Persons who committed
certain criminal offenses prior to the accrual of the
required seven years.
Positive factors include: (1) Close family ties
within the U.S.; (2) Long time residency in the U.S.;
(3) deep roots in the community (4) ill child (5) Hardship
to person and immediate family; (6) Service in U.S. Armed
Forces; (7) Employment history; (8) Ownership of property
and business; (9) Service to the community; (9) payment
of taxes (8) Rehabilitation (if criminal record exists).
Negative factors include: (1) failure
to pay taxes (misrepresentation to the court (3) the nature
and circumstances of the removal grounds; (4) Criminal
record; and (4) other evidence of bad character. |
Cancellation
of Removal for Non Permanent Residents |
| Many
people know this as the “10 year law.” It
allows the Attorney General (usually an Immigration Judge
or the Board of Immigration Appeals) to cancel the removal
of a non-permanent resident from the U.S. if:
1. He has been
physically present in the U.S. for a continuous period
of ten years prior to the institution of removal proceedings.
(This requirement is not applicable to persons who have
served a minimum of 24 months in the U.S. Armed Forces,
was present in the U.S. during his enlistment or induction,
and is either serving honorably or has received an honorable
discharge.) "Continuous" means that the person
can not be out of the U.S. for more than 90 days at
a time, or 180 days in the aggregate, during the ten-year
period.
2. He
has been a person of good moral character for ten years;
3. He
cannot be inadmissible under §212(a)(2) or (3)
(criminal and security grounds) or deportable under
§237(a)(1)(G) (marriage fraud), (2) (criminal grounds),
(3) (failure to register and falsification of documents)
or (4) (security and related grounds).
4. He
established exceptional and extremely unusual hardship
to a qualifying U.S. citizen or lawful permanent resident
spouse, parent or child. (Note: not hardship to the
applicant).
|
Cancellation
of Removal for Battered Spouse |
A
battered spouse must firstly be put into deportation (or
"removal" under the new law) proceedings. She
must demonstrate three years of continuous physical presence
in the United States, instead of ten years as applicable
to other individuals. Time toward the three-year period
would accrue even after she received the notice to appear
for the removal hearing. This is different than the one
that applies to other individuals where physical presence
in the United States terminates upon service of notice
or commission of a criminal act.
The applicant for cancellation must demonstrate good moral
character and must not be inadmissible under:
1. Section 212(a)(2)
- criminal and related grounds
2. Section 212(a)(3) - security and related grounds
3. Section 237(a)(1)(G) - marriage fraud
4. Section 237(a)(2) - criminal offenses
5. Section 237(a)(3) - document fraud
6. Section 237(a)(4) - security and related grounds
The applicant,
furthermore, must not have been convicted of an aggravated
felony.
Most difficult
is the requirement that the applicant demonstrate that
removal would result in extreme hardship. While the battered
spouse or child has to demonstrate "extreme hardship",
others need to show "extreme and unusual hardship."
Unlike in the cancellation of removal for other individuals
who have to show "extreme and unusual hardship"
to a citizen or resident relative, extreme hardship alone
to the battered applicant would suffice. |
Suspension
of Deportation |
| Any
deportation proceedings commenced on or after April 1,
1997 are removal proceedings rather than deportation or
exclusion proceedings.
However, persons who were placed in deportation proceedings
prior to April 1, 1997 as well as NACARA applicants may
still be eligible for suspension of deportation. The “seven
year law” is more generous than Cancellation of
Removal.
A deportable alien may apply for permanent residence through
suspension of deportation if he is able to fulfill the
following 3 conditions:
1. He must have
been continuously physically present in the U.S. for
at least seven years. Absences, which are “brief,
casual and innocent”, do not interrupt the continuity
of the alien's physical presence.
2. He
must be a person of good moral character.
3. It
must be an extreme hardship upon the alien, or his spouse,
children or parents who are citizens or residents of
the United States if he were deported.
|
Adjustment
of Status |
A
deportable alien who is the parent, spouse, widow or child
of a U.S. citizen may be eligible to apply to the Judge
to adjust his status to that of a lawful permanent resident
(Green Card). Also qualified to apply for adjustment of
status are many aliens whose priority dates for permanent
residence are "current". Aliens who obtained
conditional permanent residence based upon their marriage,
or the marriage of their alien parent, to a U.S. citizen
who were unable to have their status adjusted from Conditional
(temporary) resident to Permanent Resident may, once INS
places them under deportation proceedings, have their
application renewed before an Immigration Judge |
Asylum
and Withholding of Deportation |
Those
who have a well-founded fear of persecution if they return
to their home country may apply for asylum if their fear
is based on any of the following grounds:
1. Political
opinion
2. Religious belief
3. Nationality
4. Race
5. Membership in a particular social group
If a person is granted
asylum, after one year they may apply for permanent
resident status.
Withholding of deportation is similar
to asylum. However, it differs in 2 important respects:
(1) It does not permit the alien to apply for permanent
residence, and (2) it only prohibits the INS from
deporting the alien to one particular country.
|
Legalization
and Amnesty |
Once
an illegal alien has been found qualified for legalization
or "amnesty" by the INS, the deportation
hearing will typically be closed since the alien will
have attained the legal right to remain in the United
States. Those who have filed for LULAC or Meese (Late
Amnesty) may have their cases terminated.
Registry is another means of attaining
lawful permanent residence in the United States. It is
available to aliens who have resided continuously in the
U.S. since prior to January 1, 1972, who are persons of
good moral character, who are not deportable on certain
aggravated grounds, and who are not ineligible to citizenship.
This is very similar to Amnesty and still is available
to this day. |
Citizenship |
Anyone
that has fulfilled the requirements for naturalization
may request that the case be either terminated or held
in abeyance pending the results of the citizenship application. |
Voluntary
Departure |
In
most case, if there is no special relief available that
would stop the deportation, the alien may apply for Voluntary
Departure. Once it is granted the alien will have 4 months
to leave the United States. During this time they can
get their life in order and prepare for their departure.
Voluntary Departure avoids both the problems associated
with a deportation and enable to enable the alien, in
many cases, to eventually return to the U.S.
Voluntary departure is available to aliens who are not
deportable on aggravated grounds, who have the ability
to pay for their own airplane tickets, who agree to depart
within a period of time granted by the Immigration Judge,
and who can establish good moral character during the
previous five-year period. The IIRIRA limited voluntary
departure in several important ways. Extensions of voluntary
departure are no longer possible. Nor may an alien granted
voluntary departure obtain work authorization. This limits
the usefulness of voluntary departure.
Understand that every application for relief form deportation
is decided at the discretion of the Immigration Judge,
except for Withholding of Deportation. A final order of
an Immigration Judge may be appealed to the Board of Immigration
Appeals, and in some cases to the appropriate U.S. Court
of Appeals. |
|
|
|
