Over 700,000 persons are currently in deportation (removal) proceedings before Immigration Judges. It is the government’s burden to establish that they are removable from the US by clear, convincing and unequivocal evidence.
If the government meets its burden, you will have an opportunity to apply for any and all forms of relief from removal that you are eligible for. Common forms of relief include adjustment of status, waivers of inadmissibility and removability, cancellation of removal, adjustment of status, asylum, withholding of removal, the Convention Against Torture, legalization and registry.
If an Immigration Judge denies your case, you have 30 days to appeal the decision to the Board of Immigration Appeals (BIA). If the BIA denies your appeal, you may be able to challenge this denial in the U.S. Federal Court of Appeals having jurisdiction over your case.
This page helps you understand your rights if you are in removal proceedings.
How to Avoid Deportation is divided into the following subtopics:
- Waivers of Inadmissibility and Removal;
- Cancellation of Removal for Permanent Residents;
- Cancellation of Removal for Non-Permanent Residents;
- Suspension of Deportation;
- Adjustment of Status to Permanent Residence;
- Asylum and Withholding of Removal;
- Legalization and Registry; and
- Voluntary Departure.
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- Diana Cabrera, Reno, Nevada
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CANCELLATION OF REMOVAL FOR NON-LPRs
Cancellation of removal for non-lawful permanent residents is a defense to deportation, and a pathway to a green card for people who are in removal (deportation) proceedings.
You have to prove 4 things in order to get a green card through cancellation of removal:
- You have been physically present in the US for 10 years or more;
- You have been a person of “good moral character” for at least 10 years;
- You do not have any disqualifying criminal convictions;
- You have a US citizen or Lawful Permanent spouse, parent, and/or child under 21 who would suffer “exceptional and extremely unusual hardship” if you are deported.
CANCELLATION OF REMOVAL FOR GREEN CARD HOLDERS
Cancellation of Removal for lawful permanent residents enables green card holders to avoid deportation and remain in the US.
You have to prove 5 things in order to be granted cancellation of removal:
- You have been a lawful permanent resident for at least 5 years;
- You have continually resided in the US for at least 7 years;
- You have not been convicted of an aggravated felony;
- You have not been granted cancellation of removal or section 212(c) relief in the past; and
- As a matter of discretion, the Judge should grant your case.
The immigration law enumerates various grounds by which a non-citizen may be subject to removal from the U.S. A common ground of removability provides that an person may be subject to removal if he was inadmissible when he entered the U.S. There are many grounds of removability found in the law.
Eligibility for waivers of removal depends upon the person’s ability to 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 has committed fraud or a material misrepresentation may apply for a waiver under §212(i) if the failure to admit him to the U.S. would result in “extreme hardship” to his lawful permanent resident (LPR) or U.S. citizen (USC) spouse or parents. Similarly, a person who is inadmissible on 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).
Certain types of waivers such as relief for long-term permanent residents under section 212(c) do not require that the permanent resident have relatives in the U.S. although the presence of such relatives is definitely a positive factor.
SUSPENSION OF DEPORTATION
Any expulsion 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.
A deportable alien may apply for permanent residence through suspension of deportation if he is able to fulfill the following 3 conditions:
- 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.
- He must be a person of good moral character.
- 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 forced to leave the country.
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 (using Form I-485) to that of a lawful permanent resident. Also qualified to apply for adjustment of status under section 245i of the law are many Persons whose priority dates for permanent residence are “current” and who had a labor certification or visa petition submitted on their (or their parents) behalf on or before April 30, 2001.
Persons who obtained conditional permanent residence based upon their marriage, or the marriage of their parent, to a U.S. citizen may have their legal status terminated by the USCIS if they fail to meet certain requirements. However, once USCIS places them under deportation proceedings, they may renew their applications for adjustment of status to permanent residence before an Immigration Judge.
LEGALIZATION AND REGISTRY
Once an illegal alien has been found qualified for legalization or “amnesty” by the USCIS, the deportation hearing will typically be closed since the alien will have attained the legal right to remain in the United States.
Registry is another means of attaining lawful permanent residence in the United States. It is available to persons who have resided continuously in the U.S. since prior to January 1, 1972, who are of good moral character, who are not deportable based on certain aggravated grounds, and who are not ineligible to naturalize.
Finally, if there is no other relief from deportation, most persons are eligible for, and should apply for, voluntary departure from the United States. This avoids both the stigma and the legal impediments to return to the United States imposed by deportation.
Voluntary departure is available to persons who are not deportable on aggravated grounds, who have the means to pay for their departure from the U.S., 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.
All forms of relief from deportation, except withholding of deportation, may be granted at the discretion of an Immigration Judge. Final orders of an Immigration Judge may be appealed to the Board of Immigration Appeals, and in certain cases to the appropriate U.S. Court of Appeals.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening an 8 attorney firm specializing in immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the Senate Immigration Subcommittee. Carl as featured in the February 2018 edition of SuperLawyers Magazine.
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