How To Stop Deportation and Removal Proceedings: Forms of Relief

Deportation or removal proceedings can be a frightening and overwhelming experience. They can threaten to separate you from your family and the life you have built in the United States. Understanding your legal options to protect you from deportation or removal is crucial.

It is important to know that talking to an immigration attorney is completely safe, even if you do not have a legal immigration status. Immigration lawyers have a duty to keep your information confidential and will not report you to Immigration and Customs Enforcement Authorities (ICE).

This article provides general information about avoiding removal under U.S. immigration law. Contact an immigration attorney for legal advice about your rights and available relief.

Forms of Relief That Can Prevent Deportation or Removal

In immigration law, “relief” refers to the legal protections or options available to those facing deportation or removal. If you are facing deportation or removal, you have several forms of relief available. The type of relief you can ask for depends on the circumstances surrounding your case.

Most of these legal options are known as discretionary relief. This means immigration judges and the U.S. Citizenship and Immigration Services (USCIS) can stop removal on a case-by-case basis.

You can apply for discretionary relief while removal proceedings or deportation proceedings are happening. The burden of proof is on the applicant. This means you must prove you are eligible and deserve a favorable decision from the immigration judge.

They’ll consider things like:

• How long you’ve lived in the U.S.
• Your family ties in the United States
• Your connections to the community
• Your criminal record
• Safety concerns

For example, let’s say Maria has been living in the United States without legal status for 12 years. She has two U.S. citizen children, owns a small business that employs several people in her community, and has no criminal record.

When she’s placed in removal proceedings, Maria applies for cancellation of removal for non-permanent residents. The immigration judge considers various discretionary factors in her favor, including:

• Living in the U.S. for more than a decade
• Having two children who are U.S. citizens
• Her positive contributions to the community
• Her clean criminal background
• The exceptional hardship her U.S. citizen children would face if she were removed (one child has special medical needs)

The judge also considers that she entered without inspection, but weighs this against all the positive factors. Based on the totality of circumstances, the judge grants her cancellation of removal, allowing her to become a lawful permanent resident.

Let’s look at the main options for discretionary relief.

Cancellation of Removal

If you are a lawful permanent resident or nonpermanent resident, you can apply for cancellation of removal. Under this benefit, an immigration judge can adjust your status from deportable to a legal permanent resident. To get this type of relief, you must meet certain eligibility requirements.

For lawful permanent residents (green card holders), you may be eligible if:

• You’ve had your green card for at least five years.
• You’ve lived continuously in the U.S. for at least seven years after being admitted under any legal status.
• You haven’t been convicted of an aggravated felony.

For non-permanent residents (people without green cards), you may be eligible if:

• You’ve been physically present in the U.S. for at least 10 years continuously before applying.
• You’ve shown good moral character during those 10 years (no serious criminal convictions).
• You haven’t been convicted of certain disqualifying crimes.
• Your removal would cause “exceptional and extremely unusual hardship” to your immediate family members who are U.S. citizens or green card holders.

Extreme hardship is a very high standard to meet. Qualifications are often more than just the normal hardship of family separation.

Asylum

Asylum is a type of relief that protects an individual from being returned to unsafe conditions in their home country. You can apply for this type of relief if you are facing persecution in your home country. This persecution can be based on:

• Race
• Nationality
• Religion
• Political opinion
• 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. Under the Immigration and Nationality Act (INA), there are two types of relief available for asylees: affirmative asylum and defensive asylum.

• Affirmative asylum is if you are physically present in the U.S. and want protection from persecution. It’s available if you’re not going through deportation or removal proceedings. If you want to apply for asylum, you must file Form I-589 within one year of your arrival in the United States.
• Defensive asylum is available if you are already going through removal proceedings or deportation. It is a chance for individuals to present their asylum case before an immigration judge. Often, this occurs after the USCIS denies their asylum application.

The United Nations Refugee Agency (UNHCR) provides more information on the defensive asylum process. 

Temporary Protected Status (TPS)

Another type of relief available to people without U.S. citizenship is Temporary Protected Status (TPS). Some foreign nationals cannot return safely to their home country because of dangerous circumstances. These can be ongoing armed conflicts, environmental disasters, or other temporary conditions. U.S. immigration law classifies them under TPS.

This protection allows a foreign national of the designated country to live and work in the U.S. within a certain period. TPS does not lead to permanent residency or other immigration status. You still have to apply for a non-immigrant or adjustment of status.

TPS is also not available to everyone. The Secretary of Homeland Security must designate your home country as eligible for TPS.

Adjustment of Status

If you are a non-immigrant visa holder, you can file for adjustment of status to become a lawful permanent resident. This type of relief is available if you are present in the U.S. and meet the eligibility criteria. Spouses, family members, or employers usually sponsor people for these types of visas.

Some people cannot apply for an adjustment of status. This includes people who:

• Have a criminal conviction
• Fail to appear for immigration proceedings
• Did not leave the U.S. after they were granted voluntary departure

Adjustment of status is often available to people who are already in lawful status or are otherwise eligible, like immediate relatives of U.S. citizens. In removal proceedings, this relief is more limited and has specific requirements.

Unusual Hardship and Inadmissibility Relief

Some people cannot get a U.S. visa or green card because of past issues, such as a violation of immigration laws or the commission of certain crimes. You may be able to file for a waiver, which asks the U.S. government to disregard these past issues due to severe hardship. You can use the Application for Waiver of Grounds of Inadmissibility (Form I-601) to request this waiver.

Not everyone qualifies for an I-601 waiver. It can help some people avoid being separated from their families.

VAWA and Other Special Programs

Victims of domestic violence qualify for special relief under the Violence Against Women Act (VAWA). Those who have experienced abuse from their permanent resident spouse, parent, or a U.S. Citizen can self-petition for a green card without the need for sponsorship by their abuser.

For example, let’s say Louisa entered the United States on a student visa and married a U.S. citizen who promised to help her adjust her status to permanent resident.

However, her husband has been physically and emotionally abusive. He refuses to file the necessary immigration paperwork to legalize her status and threatens to call ICE and have her deported if she tries to leave him or report the abuse.

When ICE initiates removal proceedings against Louisa for overstaying her visa, she may be eligible for several forms of discretionary relief. She files a Violence Against Women Act (VAWA) self-petition, which allows her to seek a green card without her abuser’s cooperation.

The immigration judge considers positive factors, including:

• Her three years of continuous presence in the U.S.
• Her U.S. citizen stepchild, who depends on her care
• Documented evidence of the domestic violence (police reports, medical records, counselor testimony)
• Her clean criminal record
• Testimony from community members about her good character

The judge also weighs the extreme hardship she would face if returned to her home country, where she has no family support and limited economic opportunities. Based on these compelling circumstances, the judge grants her cancellation of removal while her VAWA petition is pending. This allows her to remain in the U.S. and keeps her out of the cycle of abuse.

Other special programs that can prevent removal include:

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 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 Visas

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 such as sexual assault while protecting the victims.

A U 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 (SIJ)

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

The USCIS provides further information about these types of relief and determines each case based on the totality of circumstances.

Lawful Immigration Through Family-Based Petitions

U.S. citizens and lawful permanent residents (LPRs) 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.

Having a pending family petition doesn’t automatically stop removal proceedings. You must already be eligible for adjustment of status or other relief, but a family-based petition may be the best option for some.

There are also limits on the number of family-based visas that can be issued each year. This doesn’t apply to immediate relatives of U.S. citizens. Immediate relatives include their:

• Spouses
• Unmarried children under 21 years of age
• Parents of U.S. citizens

Administrative Appeals and Judicial Review

If the immigration court judge or immigration officer denies relief, you can file an appeal to the Board of Immigration Appeals (BIA). The BIA is an administrative body that interprets federal immigration laws. Appeals must be made within 30 days from the date the immigration judge issues the order.

The Federal Courts of Appeal can also hear certain immigration appeals. If someone disagrees with the BIA‘s rulings, 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 complex. Consultation with an experienced immigration attorney is highly recommended.

Voluntary Departure

A person without legal status to stay in the U.S. can also choose voluntary departure. It allows a person to leave the U.S. without going through the formal removal process and experiencing the legal consequences of deportation.

If you get deported, you may be permanently prevented from reentering the U.S. With voluntary departure, your immigration record will not contain a deportation order. This means you may have a better chance of reentering the U.S. than those with deportation records.

If you fail to voluntarily leave the country within the time granted, you may receive a fine. You may also receive a 10-year bar to several forms of relief from deportation. Voluntary departure is often viewed as a last resort.

Frequently Asked Questions (FAQ)

Below, we answer some frequently asked questions related to deportation or removal proceedings.

Can withholding of removal stop my deportation?

Yes. Withholding of removal can stop your deportation if you are facing threats in your home country. With this relief, the U.S. government cannot proceed with the removal proceedings. Immigration laws protect you from being sent back to your home country.

Compared to asylum, withholding of removal only offers temporary protection. It also does not provide a path to U.S. citizenship or permanent resident status. If conditions in your home country improve, the U.S. government can revoke the withholding of the removal order and seek your deportation.

Withholding of removal also requires a higher standard of proof than asylum. Instead of a well-founded fear of facing danger, you must show that persecution in your home country is more likely to happen than not.

How long do I have to apply for relief from removal?

The deadline to apply for relief from removal or deportation varies depending on the type of relief you’re looking for. The following are some of the important timeframes for different forms of relief:

Asylum Applications

In general, you should file asylum applications within a year after your arrival in the United States. There are certain exceptions to this rule. For example, there can be changes in circumstances in your home country. This includes when persecution worsens.

The one-year rule might not apply in other circumstances, such as mental disability, serious illness, or ineffective assistance of counsel. Even with these exceptions, you should still file your application within a reasonable time.

Cancellation of Removal

There is no separate filing deadline for filing a cancellation of removal. However, you should continuously meet the residency or the physical presence requirements.

Adjustment of Status

For adjustment of status, the time to file your application depends on your specific circumstances and the basis of your eligibility. With some applications, you can file concurrently with other petitions. Others require you to meet certain residency requirements or for visa availability.

Appeals to Immigration Courts

If you want to appeal the decision of the immigration judge to the Board of Immigration Appeals, you should file the Notice of Appeal within 30 days.

Review of Final Removal Order

You should file petitions for review of final orders with the U.S. Courts of Appeals within 30 days after the final order is issued. The courts cannot extend this deadline. File the petition in the circuit court where the immigration judge completed the proceedings.

The filing of the petition for review alone does not automatically stop the removal proceedings. Request a court order for a stay if you want to remain in the country while your case is pending.

Do I need a lawyer for my removal case?

You are not legally required to have an immigration lawyer in your removal proceedings, as you can represent yourself. However, getting help from an immigration attorney is strongly recommended. Immigration law is complex, and the stakes of these proceedings are high. It could result in deportation or removal from the United States.

It is completely safe to consult with an immigration attorney. You can do so even if you are currently in the U.S. with no legal immigration status.

Attorneys are bound by rules of confidentiality and cannot report you to ICE or immigration authorities. This is regardless of whether you only had an initial consultation or if you hired an immigration attorney. Their legal ethics prohibit them from disclosing confidential client information to the government.

An immigration attorney can check your case and look at all possible forms of relief that you can avail of. They can also help you meet important deadlines and prepare important paperwork.

How To Find an Immigration Attorney

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

If you or a family member is facing deportation or removal, contact a local immigration attorney as soon as you can. FindLaw’s directory of immigration attorneys can help you get started. You can narrow your search by state, city, reviews, and more.

An experienced immigration attorney can explain current laws and the types of relief available in your case. They can also provide legal representation in immigration court and help you file an appeal, if necessary. Many offer payment plans and other options to offset costs.

It’s important to have someone advocating for you in any legal proceeding, especially when you’re going up against the federal government. Finding the right immigration lawyer can make all the difference.