RELIEF in Removal Proceedings

The 1996 immigration legislation worked a major refashioning of various avenues of relief from Removal.  There is RELIEF, or a defense, possible to some aliens who find themselves in Removal Proceedings, but none of the options are automatic. There needs to be competent preparation of a case to present the best legal defense possible so that the Immigration Judge has a good basis on which to base relief.  The evidence needs to be submitted in an organized manner, paginated and indexed together with the appropriate forms for the relief sought and a legal brief to tie to all together.  To have a full analysis of your particular situation and the options available, contact us.

CANCELLATION of REMOVAL

In 1996, the inauguration of Cancellation of Removal replaced Suspension of Deportation.  Under the earlier form of this relief, the Attorney General had the authority to "suspend" deportation in particular cases upon a showing of "serious economic detriment" to the immediate family of a deportable alien so long as he/she met certain statutory elements.  Under Cancellation, the same result is available, but the standard has been elevated to such a high standard that very few aliens qualify, that is one must suffer "extraordinarily unusual hardship".

The news laws are far more stringent and extremely difficult to satisfy which is why only a very small percentage of aliens are eligible for this relief. Be careful that many consultants try to convince you that if you have lived in the U.S. long enough, you can qualify to have a green card by the Immigration Judge, but this relief is a defense once you are already in removal proceedings. It is not an affirmative application you can make to the CIS.  There are different factors/elements depending on whether or not the alien has lawful permanent residence or is here illegally. If a permanent resident, the alien must have been here lawfully for at least 5 years, but needs 7 years of continuous residence in the U.S.  There can be no conviction for aggravated felony. 

If not a lawful permanent resident, the basic elements to qualify for this benefit are applied only if you satisfy the first element:

  • Exceptional and extremely unusual hardship to the alien's  U.S. citizen or lawful permanent resident spouse, parent or child; 
  • Continuous residence in the United States for 10 years
  • Good Moral Character during the 10 year period
  • Extraordinary Hardship

There is no special key to satisfying the hardship element, but there have been standards applied over the years.  You must accumulate a bundle of hardships and equitable elements into a basket that will outweigh the government's interest in removing you from the U.S. for violation of the immigration or criminal laws.  These elements can include but are not limited to: major medical illness and/or treatments, children born in the U.S., [but generally if the children are under 13, the court will rule that they can live anywhere with the parent], home and business ownership, history of tax payments, steady long-term employment, family relatives all present in U.S., country conditions hostile to safe living, and other factors.  Economic hardship is not defined as one of the elements the courts will consider. 

Certain aliens are ineligible to seek cancellation of removal:  Crewmembers; Exchange Visitors; Security Risks; Persecutors; or aliens whose removal was canceled previously.  Back to Top

VOLUNTARY DEPARTURE

If you have no alternative but to return to your home country, you must request Voluntary Departure which would allow you to leave the U.S. voluntarily, at your own expense, and you must agree to its terms and conditions.  The judge can not grant this relief unless the alien requests it and agrees to it.  If the judge orders this Relief, you must leave within the time frame he grants to you, but you can return to the U.S. as soon as you have a proper visa to do so. In the alternative, if the judge orders you deported or removed, you can not return to the U.S. for five or ten years, or quite possibly never.

To qualify for Voluntary Departure you must have been physically present in the U.S. for at least one year immediately preceding the date the Notice to appear was served; you must prove that you have good moral character for a period of five years; you must not  have been convicted of an aggravated felony, or any deportable offense; you must have clear and convincing evidence that you will depart and intend to do so.  To meet this last requirement, you must have adequate funds to pay for your own transportation to your home country, and you must promise that you will leave as ordered.    You must give Immigration Customs and Enforcement (ICE) officials your passport to ensure that you are legally able to enter the country to which you are departing. ICE may hold the passport or other documentation you present to verify its authenticity.  

It sounds simple, but many aliens are not even aware that this form of relief is available. The judge will not automatically assume you want to leave voluntarily and if you do not ask for it affirmatively, you will not get it. You will be removed, with a minimum of a 5-year bar to returning to the U.S.    The maximum length of time to leave the U.S. may not exceed 120 days although the judge may order any time less than 120 days.  Also, the alien must post a bond of at least $500 within 5 business days of the order.  To get your money back and cancel the bond, the alien must prove that he has left the U.S.

Persons who are stopped at the border are not eligible for voluntary departure, but they can withdraw their application for admission if they don't have the proper documents or are inadmissible for some reason. 

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ADJUSTMENT OF STATUS

In some instances, you may be eligible for the judge to Adjust your Status, but you must be eligible for that benefit which means there is an immigrant visa immediately available to you and you entered the U.S. legally, or you are subject to 245i benefits.  Usually, you must be "in status" to receive adjustment, but in the case of marriage to a U.S. citizen, the out-of-status violation that probably landed you in removal proceedings to begin with, is waived.  There are special rules which apply if you marry after you have been served with the Notice to Appear.  It will appear that you only married to save yourself in removal proceedings, so there is an extra showing of bonafidity required to all marriage cases. Also, there must be an approved I-130 visa petition in order for the judge to adjust your status. Click here to read more about Adjustment of Status.     Back to Top

WITHHOLDING of REMOVAL/DEPORTATION

If you come from a country to which it would be perilous to return, you may qualify for withholding of deportation.  This benefit is similar to asylum, with some slight differences.  See Asylum.      Back to Top