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).
CANCELLATION OF REMOVAL FOR PERMANENT RESIDENTS
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:
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.
CANCELLATION OF REMOVAL FOR NON-PERMANENT RESIDENTS
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:
Only 4,000 persons may be granted cancellation of removal and suspension of deportation (See below.) in a single fiscal year.
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:
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 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.
ASYLUM AND WITHHOLDING OF DEPORTATION
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:
LEGALIZATION AND REGISTRY
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
Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California