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Avoiding Deportation
by Carl Shusterman

When an Immigration Judge has found that an alien is illegally present in the United States, it does not necessarily follow that he will be deported. The Immigration and Nationality Act provides many types of relief from removal. Chief among these are (1) waivers of excludability and deportability; (2) cancellation of removal for permanent residents; (3) cancellation of removal for non-permanent residents; (4) suspension of deportation; (5) adjustment of status to permanent residence; (5) asylum and withholding of deportation; (6) legalization and registry and, if all else fails, (7) voluntary departure.


The immigration law enumerates various grounds by which an alien in the United States may be subject to removal from the U.S. A common ground of removability provides that an alien may be subject to removal if he was excludable when he entered the United States. There are many grounds of removability found in the law.

Eligibility for waivers of removability depend upon the alien'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 excludable 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).


INA 240A(a) allows the Attorney General (usually an Immigration Judge or the Board of Immigration Appeals) to cancel the removal of a lawful permanent resident from the U.S. if:

  1. He has been an LPR for a minimum of five years;
  2. He has resided continuously in the U.S. for a minimum of seven years after being admitted to the U.S. in any status (prior to the institution of removal proceedings);
  3. He has not been convicted of an aggravated felony;
  4. He is not inadmissible from the U.S. on security grounds.
The following classes of persons are ineligible for cancellation of removal:(1)Certain crewmen; (2) Exchange visitors (in "J" status) who received medical training in the U.S.; (3) Persons who have persecuted others; (4) Persons who have previously been granted cancellation of removal, suspension of deportation (See below.) or relief under 212(c); and (5) Persons who committed certain criminal offenses prior to the accrual of the required seven years.

Positive factors include: (1) Family ties within the U.S.; (2) Long time residency in the U.S.; (3) Hardship to person and immediate family; (4) Service in U.S. Armed Forces; (5) Employment history; (6) Ownership of property and business ties; (7) Service to the community; (8) Rehabilitation (if criminal record exists); and (9) Good moral character.

Negative factors include: (1) Nature and circumstances of exclusion grounds; (2) Other immigration law violations; (3) Criminal record; and (4) Other evidence of bad character.


INA 240A(b) allows the Attorney General (usually an Immigration Judge or the Board of Immigration Appeals) to cancel the removal of a non-permanent resident from the U.S. if:

  1. He has been physically present in the U.S. for a continuous period of ten years prior to the institution of removal proceedings. (This requirement is not applicable to persons who have served a minimum of 24 months in the U.S. Armed Forces, was present in the U.S. during his enlistment or induction, and is either serving honorably or has received an honorable discharge.) "Continuous" means that the person can not be out of the U.S. for more than 90 days at a time, or 180 days in the aggregate, during the ten-year period.
  2. He has been a person of good moral character for ten years;
  3. He cannot be inadmissible under 212(a)(2) or (3) (criminal and security grounds) or deportable under 237(a)(1)(G) (marriage fraud), (2) (criminal grounds), (3) (failure to register and falsification of documents) or (4) (security and related grouds).
Special relaxed rules for qualifying for cancellation of removal for non-LPRs apply to battered spouses and children

Only 4,000 persons may be granted cancellation of removal and suspension of deportation (See below.) in a single fiscal year.


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:

  1. 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.
  2. He must be a person of good moral character.
  3. 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.


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 to that of a lawful permanent resident. Also qualified to apply for adjustment of status are many aliens whose priority dates for permanent residence are "current".

Aliens who obtained conditional permanent residence based upon their marriage, or the marriage of their alien parent, to a U.S. citizen may have their legal status terminated by the INS if they fail to meet certain requirements. However, once INS places them under deportation proceedings, they may renew their applications for permanent residence before an Immigration Judge.


Those who have a well-founded fear of persecution if they return to their home country may apply for asylum if their fear is based on any of the following grounds:

  1. Political opinion
  2. Religious belief
  3. Nationality
  4. Race
  5. Membership in a particular social group
If a person is granted asylum, after one year they may apply for permanent resident status. Withholding of deportation is similar to asylum. However, it differs in 2 important respects: (1) It does not permit the alien to apply for permanent residence, and (2) it only prohibits the INS from deporting the alien to one particular country.


Once an illegal alien has been found qualified for legalization or "amnesty" by the INS, 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 aliens who have resided continuously in the U.S. since prior to January 1, 1972, who are persons of good moral character, who are not deportable on certain aggravated grounds, and who are not ineligible to citizenship.


Finally, if there is no other relief from deportation, most aliens 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 aliens 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.

About The Author

Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 624 So. Grand Ave., Suite 1608
Los Angeles, California 90017

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