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Avoiding Removal

For noncitizens immigrating to the United States, navigating the complex rules of U.S. immigration law can be challenging. This is especially true for those facing the prospect of deportation or removal. In these scenarios, understanding the intricacies of the immigration process is crucial to your immigration status.

It is equally important to understand that various forms of relief are available to avoid deportation or removal. Your options may range from obtaining a green card to acquiring U.S. citizenship through naturalization. Each of these forms of relief comes with eligibility requirements that are influenced by different factors. These factors include employment status, family relationships, and demonstration of good moral character.

This article gives general information on the forms of relief individuals can avail themselves of to prevent removal or deportation and gain legal status.

What Forms of Relief Are Available to Prevent Deportation or Removal?

Individuals facing deportation or removal have different forms of relief. This subsection discusses the various legal avenues available to noncitizens to challenge deportation or removal actions.

Discretionary Relief

Discretionary relief is available while removal proceedings or deportation proceedings are being conducted. The burden of proof rests on the applicant, who must show they are eligible for a favorable exercise of discretion.

The USCIS officers consider all relevant facts in each case, such as lawful permanent resident status and good moral character. The assessment will also be on a case-by-case basis, and all factors will be assessed before adjudication by an immigration judge.

Immigration judges and the USCIS can reject applications if the petitioner does not meet the requirements set by law. In addition, a conviction for an aggravated felony can also serve as grounds for denial of the application.

Cancellation of Removal

Cancellation of Removal is a relief available to qualifying lawful and non-permanent residents. Under this benefit, an individual's status is adjusted from “deportable" to “lawfully admitted for permanent residence." An application for cancellation of removal is made during a hearing before an immigration court.

Asylum

An asylum is a type of relief that protects an individual from being returned to his or her home country. It is a protection granted to foreign nationals facing persecution in their home country. The persecution is often due to race, nationality, religion, political opinion, or membership of a particular social group. Successful asylum applicants can legally live in the U.S. and could gain a path to permanent residency or U.S. citizenship. They can also petition their spouse and children to join them in the United States.

Under the Immigration and Nationality Act (INA), there are two types of relief available for asylees. First, affirmative asylum. Second, defensive asylum.

Affirmative asylum is if you are physically present in the U.S. and want protection from persecution. You want to stay in the U.S. lawfully, and you are not going through deportation or removal proceedings. To seek affirmative asylum, you must file Form I-589 within one year of your arrival in the United States.

Defensive asylum is a relief if you are already going through removal proceedings or deportation. It is an opportunity given to individuals to present their asylum case before an immigration judge. Oftentimes, this occurs after the U.S. Citizenship and Immigration Services denied their asylum application. The United Nations Refugee Agency (UNHCR) provides more information on the defensive asylum process

Withholding of Removal

Certain types of relief are available to foreign nationals facing threats in their home countries. Included among these is the withholding of removal. With this relief, the U.S. government cannot proceed with the removal proceedings. You are protected from being sent back to your home country. However, compared to asylum, withholding removal only offers temporary protection. It also does not provide a path to U.S. citizenship or permanent resident status. If the conditions improve in your home country, the U.S. government can revoke the withholding of the removal order and seek your deportation.

Temporary Protected Status (TPS)

Another type of relief that noncitizens can use is Temporary Protected Status (TPS). TPS is a designation given to a foreign country because certain circumstances prevent its nationals from returning safely.

This protection allows a foreign national of the designated country to live and work in the U.S. within a certain period. The decision to grant TPS can be based on environmental disasters, ongoing armed conflict, and other extraordinary conditions.

Voluntary Departure

Voluntary departure is often viewed as a relief of last resort. It allows a person to leave the U.S. without a stigmatizing formal removal order. A noncitizen allowed to choose voluntary departure admits removability but does not have a bar to seeking admission at a port-of-entry at any time.

If an individual fails to depart within the time granted, they will receive a fine and a 10-year bar to several forms of relief from deportation.

Adjustment of Status

This is a form of relief where an individual's immigration status in the U.S. is changed from temporary nonimmigrant to permanent resident.

Those who qualify for visas allowing an adjustment of status are often petitioned for by a spouse, other family members, or an employer. Those who have criminal convictions, failed to appear for proceedings, or didn't leave after a grant of voluntary departure may NOT apply for adjustment of status. You can read more information about the adjustment of status in this article by FindLaw.

Administrative Appeals and Judicial Review

Suppose either the potential deportee or the Department of Homeland Security (DHS) disagrees with the decision of an immigration judge. In that case, they can appeal to the Board of Immigration Appeals (BIA) to overturn the ruling.

The BIA is an administrative body with the authority to interpret Federal immigration laws. The BIA must receive an appeal of an immigration judge's decision within 30 days from the date the court issued it.

Under immigration laws, the Federal Courts of Appeal have the authority to hear certain decisions appealed by the BIA. If someone disagrees with the rulings of the BIA, they may be able to appeal to the Federal courts.

A noncitizen has 30 days to file a judicial appeal from the final removal decision. The process for filing a judicial review is very complex, and consultation with a qualified immigration attorney is highly recommended.

Unusual Hardship and Inadmissibility Relief

Individuals who are not eligible for admission to the U.S. through an immigrant visa or an adjustment of status can apply for a waiver of admissibility using the Application for Waiver of Grounds of Inadmissibility form (Form I-601).

The eligibility grounds for this form of relief depend on the immigration benefit the applicant seeks. It can also depend on the reasons for their inadmissibility to the country.

VAWA and Other Special Programs

Victims of domestic violence can avail of certain reliefs under the Violence Against Women Act (VAWA). Victims of domestic violence are those who experienced abuse from their permanent resident spouse, parent, or a U.S. Citizen. Eligible individuals can self-petition for a green card without the need for sponsorship by their abuser.

Deferred Action

Certain noncitizens may be eligible to apply for temporary relief through the deferred action program. Deferred Action for Childhood Arrivals (DACA) is a deferred action policy that aims to protect undocumented immigrants who arrived in the U.S. as children. The U.S. government gives them temporary relief from deportation or removal. They are also given certain benefits, including work authorization or the chance to enroll in schools in the United States.

U Visa

Victims who suffered physical or mental abuse and can assist in the prosecution or investigation of certain crimes can be eligible for a U Visa. This strengthens the ability of law enforcement agencies to investigate and prosecute crimes while giving protection to the victims. This visa provides temporary immigration status, which includes work authorization. It could also allow the victim to gain lawful permanent resident status in the United States.

Special Juvenile Immigrant Status (SIJS)

Children under 21 years of age who experienced abandonment or neglect by a parent or caregiver may be eligible for SIJS relief. The minor must reside in the U.S. and have a juvenile court order obtaining relief from neglect, abuse, abandonment, or a similar basis.

The U.S. Citizenship and Immigration Services (USCIS) provides further information about these types of relief. The USCIS officers determine each case based on the totality of circumstances.

Lawful Immigration Through Family-Based Petitions

U.S. Citizens and lawful permanent residents (LPR) may petition their noncitizen family members through family-based immigration. Through this process, certain family members of U.S. Citizens and permanent residents may acquire a green card.

If you are a U.S. Citizen, you may petition for:

  • Your spouse
  • Your unmarried child or children 21 years of age or older
  • Your married sons and daughters of any age
  • Your parents, if you are at least 21 years of age

If you have a permanent resident status or are a green card holder, you may petition for:

  • Your spouse
  • Your unmarried sons and daughters under 21 years old

The USCIS processes the immigrant visa petition and forwards the case to the National Visa Center (NVC) for pre-processing. Family-based immigration has numerical limits on the number of visas issued. An exception applies to immediate relatives of U.S. citizens, wherein no numerical limitations apply. Immediate relatives include their spouses, unmarried children under 21 years of age, and parents of U.S. citizens.

Contact an Immigration Attorney

Understanding the complex rules of immigration law can be an overwhelming task. Noncitizens facing orders of removal or deportation are under intense pressure to find relief.

However, if you face an order of removal or deportation, you can challenge them through different legal avenues. In addition, individuals can also seek a stay of removal, which may temporarily pause the deportation.

You can also attempt to reopen your case in certain circumstances. This option will allow further consideration of the relief options available. For instance, a noncitizen can seek naturalization or try to obtain lawful permanent residency in the U.S.

If you or a family member are facing deportation or removal, it is best to contact an immigration attorney near you. A skilled immigration attorney can assist you in understanding customs enforcement and the types of relief available in your case. 

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