Relief From Removal/Deportation

If you are facing the threat of deportation, Cella & Associates can help you! Deportation is the process when a non-citizen alien is forced to leave the United States. Immigration officials may use the term deportation and removal interchangeably.

A grant of relief from deportation/removal allows a non-resident alien to stay in the United States. Relief may be granted in two categories; discretionary relief and administrative judicial relief. Discretionary relief may involve certain circumstances related to the alien, such as persecution in the home country. Administrative relief pertains to an appeal of a removal decision. This may include motions, stay of removal, administrative appeal, and judicial review. Each relief category has specific factors and eligibility factors.

The following are the different types of relief allowed in the United States for Deportation/Removal.

Citizenship (Forms N-400, N-600):

Some aliens are United States citizens without knowing it. The following are two instances where this could happen:

  • Birth in the United States
  • Having a parent or grandparent who was born in the United States or who became a U.S. citizen before you turned 18 years old.

In such cases, removal/deportation proceedings would be terminated.

Adjustment of Status (Form I-485):

Adjustment of status is when an individual has an immediate relative petition the USCIS for their lawful permanent resident status, even while the alien is in removal/deportation proceedings. Another way adjustment of status may occur is if the individual is the primary or derivative beneficiary of a family-based or employment-based petition, stemming from an approved labor certification and/or PERM case that was filed on or before April 30, 2001.

An alien may also be eligible to apply for registry if they can prove that they have resided in the United States continuously since at least January 1, 1972 and are of good moral character.

Cancellation of Removal for Certain Permanent Residents (Form EOIR 42-A):

Even a lawful permanent resident (“LPR”) of the United States may be removable/deportable if he or she violated certain immigration and/or criminal laws. However, such a person may be able to keep his or her LPR status in the following instances:

  • the applicant has been a legal permanent resident for at least five years;
  • the applicant has lived in the United States continuously for at least seven years after having been legally admitted; and
  • the applicant has not been convicted of certain criminal offenses.

A successful cancellation of removal petition would yield the permanent resident being allowed to keep their legal permanent resident status in the United States.

Cancellation of Removal for Certain Non-Permanent Residents (Form EOIR 42-B):

An alien in removal/deportation proceedings may be eligible to apply for “10-year Cancellation of Removal” for non-permanent residents if:

  • The applicant has lived in the United States continuously for at least the last ten years;
  • The applicant is a person of good moral character; and
  • The applicant has a US and/or legal permanent parent, spouse, and/or child who would suffer “exceptionally and extremely unusual hardship” in the event that the alien was to be removed from the United States.

While the case is pending, the alien will be eligible to receive an employment authorization document (“EAD”), social security number and driver’s license.

A successful cancellation of removal petition would yield the permanent resident being allowed to become a legal permanent resident in the United States.

Suspension of Deportation for Lawful Permanent Residents Under INA §212(c)(Form I-191):

A lawful permanent resident who is in removal/deportation proceedings for having been convicted of crime before April 1, 1997 may be eligible for a waiver under INA §212(c). A waiver under §212(c) involves a “balancing of the equities.” In other words, the Immigration Judge (“IJ”) would weigh the individual case’s positive factors against the negative factors to determine if the individual should be permitted to remain in the United States as a lawful permanent resident (“LPR”).

A successful cancellation of removal petition would yield the permanent resident being allowed to keep their legal permanent resident status in the United States.

Cancellation of Removal and Adjustment of Status Under the Violence Against Women’s Act (VAWA)(Form I-360):

An alien and/or alien child who has been subjected to abuse and/or extreme cruelty by a U.S. citizen or legal permanent resident parent or spouse, may qualify for cancellation or removal and/or adjustment of status to lawful permanent resident without the assistance or knowledge of the abusive spouse or parent, even if the victim (or his or her parent) is divorced or widowed. Both woman and men can invoke this protection.

A successful cancellation of removal petition would yield the permanent resident being allowed to become a legal permanent resident in the United States.

Political Asylum, Withholding of Removal & Article III of the U.N. Convention Against Torture (CAT) (Form I-589):

An alien may qualify for political asylum or withholding of removal and/or protection under the U.N. Convention Against Torture if the alien can establish that they have a reasonable fear of persecution by the government of their home country and/or group(s) that their government cannot or will not control.

To be granted political asylum or withholding of removal, the alien must establish that such persecution would be on the basis of race, religion, membership in a particular social group, political opinion and/or nationality.

If successful in political asylum the alien will be able to adjust his or her status to lawful permanent resident. If successful in withholding or removal or protection under the U.N. Convention Against Torture, the alien will be permitted to remain in the United States indefinitely with employment authorization.

T & U Visas:

An alien may be eligible for a T & U Visas when an alien has been a victim of a crime while in the United States or has been a victim of human trafficking into the United States. The alien must show that he or she is willing to cooperate, is currently cooperating, or has in the past cooperated with law enforcement to investigate and/or prosecute the person and/or organization(s) who have committed such crime(s).

A successful petition allows the alien to be eligible for permission to live and to work in the United States.

Nicaraguan and Central American Relief Act (“NACARA”) (Form I-881):

Apart from having never been convicted of an aggravated felony, to be eligible to apply for NACARA 203 relief, an alien must be one of the following:

  • A Guatemalan who first entered the United States on or before October 1, 1990 (ABC class member); registered for ABC benefits on or before December 31, 1991; applied for asylum on or before January 3, 1995; and was not apprehended at time of entry after December 19, 1990.
  • A Salvadoran who first entered the United States on or before September 19, 1990 (ABC class member); registered for ABC benefits on or before October 31, 1991 (either directly or by applying for Temporary Protected Status (TPS)); applied for asylum on or before February 16, 1996; and was not apprehended at time of entry after December 19, 1990.
  • A Guatemalan or Salvadoran who filed an application for asylum on or before April 1, 1990 and have not received a final decision on your asylum application.
  • An individual who entered the United States on or before December 31, 1990; applied for asylum on or before December 31, 1991; and at the time of filing the application was from one of the former Soviet bloc countries (Soviet Union, Russia, any republic of the former Soviet Union, Latvia, Lithuania, Estonia, Albania, Bulgaria, Czechoslovakia, East Germany, Hungary, Poland, Romania, Yugoslavia, or any state of the former Yugoslavia).

Qualified family members of the applicant in one of the above categories and family members who have been battered, may be eligible to apply for NACARA 203 relief with an Immigration Judge (IJ).

Temporary Protected Status (“TPS”) (Form I-821):

Aliens from certain countries may be eligible to apply for temporary protective status on the basis of civil or natural disaster or catastrophe. Commission of certain crimes preclude individuals from qualifying for TPS. Presently, the temporary protected status countries include:

  • El Salvador
  • Haiti
  • Honduras
  • Nicaragua
  • Somalia
  • Sudan
  • South Sudan
  • Syria

If granted, removal/deportation proceedings will be closed and the alien will be permitted to live and work in the United States temporarily. Although the TPS status is temporary, it may last for many years.

Voluntary Departure (“VD”):

An alien may voluntarily depart the United States, preserving the right to return. An Immigration Judge may grant voluntary departure only if:

  • the alien has not been convicted of certain crimes;
  • the alien had not been granted voluntary departure, or ordered removed or deported in the past;
  • and, the alien establishes that he or she has the intention and ability to depart the United States within the time specified.

Should the alien fail to depart the United States within the time specified by the Immigration Judge, the order of voluntary departure will automatically convert to removal/deportation order and the alien will become a fugitive.

Prosecutorial Discretion (“PD”):

Immigration and Customs Enforcement (ICE) uses a number of factors to decide when to prosecute and when to exercise prosecutorial discretion to terminate removal/deportation proceedings against an individual in the United States illegally. The factors considered by Immigration and Customs Enforcement (ICE) include:

  • pursuit of education in the U.S.;
  • circumstances of the person’s arrival in the U.S.
  • length of presence in the U.S.;
  • whether the alien has any immediate family who has served in the armed forces; the person’s ties and contributions;
  • ties to the community;
  • whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
  • age of the alien;
  • ties to his or her home country; and
  • whether the person is likely to be granted some sort of temporary or permanent relief from removal.

Deferred Action For Childhood Arrivals (“DACA”) (Form I-821D):

Deferred Action For Childhood Arrivals (“DACA”) affords protection from removal for individuals who meet the following criteria:

  • the applicant is under 31 years of age as of June 15, 2012 and came to the U.S. while under the age of 16;
    • the applicant has continuously resided in the U.S. from June 15, 2007 to the present;
    • the applicant entered the U.S. without inspection before June 15, 2012, or the Applicant’s lawful immigration status expired as of June 15, 2012;
    • the applicant was physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
    • the applicant is currently in school, has graduated from high school, obtained a GED, or has been honorably discharged from the Coast Guard or armed forces; and
    • the applicant has not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors.

Once granted deferred action for childhood arrivals (DACA), an individual will receive an Employment Authorization Document (“EAD”) for two years, which is renewable indefinitely.

Contact our office to learn more about any of these relief categories to have Cella & Associates help you with obtain relief from deportation/removal.

This website has been developed to be a useful and informative tool for clients and prospective clients. It is possible that information contained herein may change from time to time and while accurate at the date of publication, may not be accurate as at the time you access this website. We provide no warranty or take any responsibility (or liability) for any loss or damage (either direct or consequential) that may be suffered due to reliance on the information published on this website.