Many family members are concerned that if their relative falls into the hands of ICE, then he or she will automatically be deported. There are rarely situations where deportation is automatic — even when someone has a previous removal order, or has just entered the United States. Below are some types of relief from deportation. Each has specific eligibility requirements, which cannot be fully explained in a single post.
1. Cancellation of removal for non-permanent residents
This option is available for individuals who have no permanent status, but have 10 years of continuous physical presence in the U.S., have demonstrated good moral character during this period, and have qualifying relatives that would suffer exceptional and extremely unusual hardship if the individual is removed.
Non-LPR cancellation is hard to win, mainly due to the hardship prong. Case law distinguishes extreme hardship from exceptional and extremely unusual hardship, which carries a much higher burden of proof.
2. Cancellation of removal for permanent residents.
To get this type of cancellation, the applicant needs to have had his green card for 5 years, continuous residence in the U.S. for 7 years, and cannot be convicted of an aggravated felony. The latter two elements are extraordinarily complicated. Certain crimes will cut off the applicant’s period of residence. There are over twenty types of aggravated felonies, many of which incorporate minimum sentences.
3. Asylum and other Persecution-Based Types of Relief
Asylum is available to refugees, or persons who have fled persecution in their native countries based on one of five statutory grounds: race, religion, nationality, political opinion, and membership in a particular social group. There are related forms of relief, like withholding of removal and protection under the Convention Against Torture. These carry higher burdens of proof, but are sometimes the only available options for persons with criminal histories that disqualify them from receiving asylum.
4. U Visas and VAWA
There is relief available for victims of crimes. U visas are for persons who have been the victim of a qualifying criminal activity, have suffered substantial physical or mental abuse, and have cooperated with law enforcement in investigating or prosecuting the crime. VAWA is for spouses of abusive LPRs or U.S. citizens. In removal proceedings, an abused spouse can sometimes apply for VAWA cancellation or VAWA adjustment of status.
5. Adjustment and Readjustment of Status
Adjustment of status is where a person already in the United States is granted the status of lawful permanent resident, without having to leave the country. It typically requires a petitioner, like a family member. In removal proceedings, adjusting status is sometimes a strategy for avoiding deportation, when the act of adjusting status allows the person to waive the underlying basis for removal. Readjustment refers to when a lawful permanent resident reapplies for a green card.
6. 212(h) Waiver
This is a criminal waiver, which allows an applicant with certain crimes of inadmissibility to remain in the United States lawfully. It can waive crimes involving moral turpitude — like theft, burglary, and assault — as well as convictions for simple possession of marijuana under 30 grams.
These are just as few forms of relief from deportation. Each has very specific eligibility requirements. Most often, once eligibility is established, the applicant must still present evidence showing why he or she is worth of a favorable exercise of the immigration judge’s discretion.
If you have any questions, feel free to call Dallas-based deportation lawyer Vinesh Patel to discuss the availability of relief for you or your loved one.
This post is also available in: Spanish