If you are challenging your removal from the United States and will be applying for immigration relief to avoid removal, it is very important to prepare your case well. The immigration judge will set an individual hearing to determine whether you should be allowed to stay in the United States.
There are various forms of immigration relief that an alien can apply for in removal proceedings in order to preserve their legal status or to obtain their permanent resident status. We know what it takes to win in removal proceedings. We assess the best immigration relief available to our client, prepare that relief with help from the alien and their family members and aggressively represent the alien at the final hearing.
During removal proceedings, the immigration judge has the final say to grant or deny immigration relief. An alien may be eligible for immigration relief including but not limited to the following: Cancellation of Removal, Adjustment of Status, Asylum, Withholding of Removal, Convention against Torture and waivers under INA Section 237(a)(1)(h), 212(i), and 212(h).
1. Cancellation of Removal
This is an important legal relief for both permanent and non-permanent residents who are in removal/deportation proceedings. This form of relief is available for lawful permanent residents who have resided continuously in the U.S. for at least five (5) years as permanent residents and have resided continuously in the U.S. after admission in any lawful status for at least seven (7) years. In addition, the alien must essentially demonstrate that there are more positive than negative factors to justify being allowed to stay in the United States. Finally, a lawful permanent resident must not have been convicted of an aggravated felony.
In order for a nonresident to qualify for Cancellation of Removal for Non Permanent Residents, an alien must have resided in the U.S. continuously for ten (10) years after entering the United States without inspection, (illegally). The alien must establish good moral character during the 10 year period preceding the date the application for this relief was filed with the immigration court. The alien must also demonstrate that his/her removal would result in exceptional and extremely unusual hardship to a qualifying relative(s), such as a U.S. citizen or lawful permanent resident parent, spouse or child residing in the U.S. The hardship requirement is a very difficult standard to meet and aliens are encouraged to consult an experienced attorney to evaluate whether they are eligible for this and any other relief.
2. Adjustment of Status
If eligible to apply in the United States, an alien can apply again for a green card through a family member. For example, a lawful permanent resident in removal proceedings could apply to readjust his or her status again through an immediate family member such as a U.S. citizen spouse, U.S. citizen child, 21 years or older or in the case of a U.S. citizen parent, only if the alien is under 21 years old. An alien in removal proceedings with no legal status could apply to adjust his or her status for the first time, if eligible to apply in the United States, through an immediate family member such as a U.S. citizen spouse, U.S. child, 21 years or older or in the case of a U.S. citizen parent, only if the alien is under 21 years old.
A 212(c) waiver is available to eliminate certain criminal convictions including those considered to be aggravated felony convictions if the alien:
a. Pled to criminal charges or was convicted aftera jury trial (depending on Appellate jurisdiction) before April 24, 1996.
b. Is a lawful permanent resident.
c. had a green card for at least seven consecutive years prior to the date of a final order of removal.
d. Is not subject to deportation or removal on the grounds of terrorism or national security.
e. Is not unlawfully present in the United States after a previous immigration violation for which the alien was previously granted 212(c ) or cancellation of removal, or has been convicted of an aggravated felony offense (or offenses) for which the alien served at least five years in prison.
4. 212(i) and 212(h) waivers
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212(h) waiver: An alien with a criminal conviction that falls under the crime of moral turpitude or prostitution ground of inadmissibility, or concerns a single possession of marijuana conviction involving less than 30 grams of marijuana or occurred 15 years or longer since the conviction, may be eligible for a waiver pursuant to INA section 212(h).
- 212(i) waivers:
An alien may also apply for a waiver under section 212(i) of the INA for fraud or Misrepresentation.
5. 237(a)(1)(h) waiver
INA § 237(a)(1)(H) provides a discretionary waiver in removal proceedings for lawful permanent residents who commit certain misrepresentations and fraud at admission that would otherwise render them inadmissable. A waiver will be authorized if the lawful permanent resident can show that
- he or she is the spouse, parent, or son or daughter of a U.S. citizen or a lawful permanent resident;
- he or she was in possession of an immigrant visa or equivalent document at the time of admission; and
- he or she was otherwise admissible at the time of admission except for
inadmissibility under INA §§ 212(a)(5)(A) and (7)(A) that was a direct
result of the fraud or misrepresentation.
6. Asylum
Asylum may be granted to aliens who are already in the United States and are unable to return to their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.
An alien must file an asylum application within one year of arrival in the United States. An asylum application may be filed later than a year, if conditions in the home country have changed or if the alien’s personal circumstances have changed within the past year prior to requesting for asylum and those change of circumstances affected the alien’s eligibility for asylum.
Furthermore, an alien may be excused from the one year filing deadline if extraordinary circumstances prevented the alien from filing within the one year period after arriving in the United States, so long as asylum application is submitted within a reasonable period of time in light of those circumstances.
An alien granted asylum will be able to apply for permanent resident status one year after being granted asylum status.
7. Withholding of Removal
Withholding of Removal is an alternative form of relief for an individual fearing persecution in her country of origin. To win “Withholding” an alien must demonstrate that he or she is “more likely than not” to face persecution account of race, religion, nationality, membership in a particular social group or political opinion if returned to his or her country. An individual is not eligible for withholding of removal if he or she has been determined to be a persecutor or has been convicted of a particularly serious crime.
Aliens granted “withholding” have a final order of removal (deportation) against them. However, they can remain in the U.S. and work legally. Unlike asylees, however, aliens granted “Withholding” do not have the right to apply for lawful permanent residence status.
8. Convention Against Torture, (CAT)
To obtain C.A.T. relief, an alien must demonstrate that it is more likely than not that he or she will be tortured, killed or sustain great bodily injury if returned to their home country and the government is responsible for the torture or is powerless to stop others from committing it.
An alien who has been granted CAT cannot be removed to the country in which he or she would face torture. However, a CAT grantee will not be able to obtain lawful permanent resident status, travel abroad or sponsor family members in that status. Furthermore, CAT grantees are not guaranteed that they will receive an employment authorization card or even be released from ICE custody.
9. Voluntary Departure
This form of relief, if granted by an immigration judge, will avoid a removal order and thereby allow an alien to return to the U.S. without a mandatory 5 or 10 year bar of reentry which would otherwise result from a removal or deportation order. Of course, the alien will still have to show he or she is not inadmissible because of other immigration violations if they want to return to the U.S.A.
An Immigration Judge can grant up to 120 days of voluntary departure time if voluntary departure is requested at the Master Calendar hearing, (prehearing voluntary departure) or 60 days if requested at the Individual hearing.
A showing of good moral character is not required for prehearing voluntary
departure. However, good moral character is required if voluntary departure
is requested at the Individual hearing, along with a showing of being
physically present in the USA at least 1 year prior to being served with the
Notice to Appear.
A $500.00 bond will also be required by the Immigration judge if voluntary departure is requested at the Individual hearing. An alien convicted of an aggravated felony is ineligible for voluntary departure.