Stopping a Deportation

To qualify, you must have 10 years of continuous physical presence in the United States, up until the court filing of the Notice To Appear.  During this period you must demonstrate good moral character. You also cannot have been convicted of a crime under Section 212(a)(2) or 237(a)(2) of the Act.

The final requirement for a grant of cancellation is normally the toughest: you must demonstrate that your removal from the United States will cause exceptional and extremely unusual hardship on a U.S. citizen or resident parent, spouse or child.  This is a very high burden, and few applicants can meet it. Imagine the ordinary case when someone is deported. It causes significant hardship on his family. To win cancellation, you have to prove hardship that far exceeds that in the ordinary, or even extreme, case.

Often the best reason to apply for cancellation is that it buys time.  Removal proceedings can take several months to years to be fully resolved, not even including time during an appeal.  During that time, a cancellation applicant can receive a work permit. Also, while the application is pending, we often look for other types of relief that become available.

Green card holders can apply to cancel their removal if they have had their green cards for 5 years, if they have continuously resided in the U.S. for 7, and if they lack a conviction for an aggravated felony.

Deciding whether you have 7 years of continuous residence is trickier than it sounds.  Several types of criminal offenses can “stop the clock.”

Knowing if you’ve been convicted of an aggravated felony is also not a simple matter.

Even if you meet the above eligibility requirements, you’ll need to prove to an immigration judge that you deserve to remain in the U.S. as a matter of discretion.  This means that in deciding your application, the Immigration Judge will weigh factors like your length of presence, family hardship, and the nature and seriousness of criminal history.

Just as a person can apply for a green card through a family member outside of removal proceedings, he or she can do the same in immigration court.  Except, in removal proceedings, only the immigration judge can decide whether to give you a green card.

The same eligibility requirements apply, whether or not you in removal proceedings.  You’ll need an approved visa petition, a visa that’s immediately available, and a lawful entry to the United States (or meet some other exception).

Also, if you have criminal history that makes you inadmissible, you’ll need to seek a criminal waiver under section 212(h) of the Immigration and Nationality Act.

Notably, even people that have already adjusted status in the past can sometimes qualify for “Readjustment of Status.” To do so, you’ll need a new visa petition, one that’s different from the one that you previously used.

Asylum is a form of government protection for refugees. Refugees are persons who fled persecution from their native countries.  Significantly, you can’t get asylum just because your life is in danger. You have to prove that the persecution feared is on account of your race, religion, nationality, political opinion, and membership in a particular social group. Also, generally speaking, you won’t qualify for asylum unless you apply within one year of your last entry.  (Exceptions apply though.) Finally, you are barred from seeking asylum if you’ve been convicted of an aggravated felony.

If you don’t qualify for asylum, but still fear for your life, there are other forms of related relief available.  One is withholding of removal. Withholding of removal is harder to win than asylum; you have to prove that you face a greater than 50% chance of persecution.  (For asylum, you only need to show a well-founded fear of persecution, which one court has suggested could be as low as 10%.) If you are granted withholding, you cannot leave the United States, and you can’t get a green card.  

If you don’t qualify for withholding of removal, you can apply for protection under the Convention Against Torture.  This for people who face a probability of being tortured by or at the acquiescence of a public official.

Occasionally, removal clients can qualify for Temporary Protected Status, which is a form of humanitarian relief for people only from designated countries — usually, ones that suffered some sort of disaster, man-made or natural.  

Qualifying for TPS in removal proceedings is difficult because one must meet strict physical presence requirement.

U visas are for victims of crimes that have cooperated in its investigation or prosecution and have suffered from it substantial physical or mental abuse.  The crime must be on a list of qualifying offenses, which, among others, includes domestic violence, extortion, felonious assault, kidnapping, manslaughter, rape, and prostitution.  

Technically, a U visa is not a form of relief that an immigration court can grant.  Only USCIS has the power to grant a U visa application. However, if a U visa application is granted for a person in removal proceedings, ICE will move to terminate proceedings and stop the removal process.  

The challenge in seeking relief through a U visa is two-fold.  First, you have to convince a law enforcement official to sign a U visa law enforcement certification, to show that you were the victim of a crime and were cooperative.  Second, you have to convince the immigration judge to hold off on going forward with removal proceedings while your U visa application is pending.

T visas are for trafficking victims.  As with the U visa, T visas cannot be decided by an immigration judge. T visa applications are only filed with USCIS. Nonetheless, if you’ve been the victim of human trafficking, seeking a T visa is an effective way of stopping deportation.

To qualify, you must have been the victim of sex or labor trafficking.  Typically this requires that you were coerced in some way to perform sexual activity or to work.  

If a decision is made that your application for a T visa is bona fide, then automatically you will receive a stay of removal from the Department of Homeland Security.

Notably, to get a T visa certification, you don’t need certification by a law enforcement official.  At a minimum, you need to prove that you were the victim of human trafficking and that you tried to report the crime to authorities.

The 212(h) waiver is a criminal waiver that can be used affirmatively (outside removal proceedings) and defensively (in removal proceedings).

In removal proceedings, it can only be used in two scenarios to waive a crime of inadmissibility.  First, where the person was charged with removal on attempted entry into the country at a port-of-entry, like a border crossing point or airport.  In this scenario, it’s used as a standalone waiver. Second, the waiver can be used in conjunction with an application adjustment of status in removal proceedings.  

The waiver doesn’t every crime under the sun.  Most commonly it’s used to waive crimes involving moral turpitude (like fraud or theft), prostitution, or a single offense of possession of marijuana under 30 grams.  It cannot be used to waive other drug offenses like possession of cocaine or heroin, or multiple offenses involving marijuana.

Prosecutorial discretion refers to ICE’s discretion or authority to not pursue removal in a particular case, based on special circumstances.  The use of prosecutorial discretion has largely ground to a halt under the Trump administration. It used to be a common tool for administratively closing cases where no relief was available, but where the person has a largely positive history and only minor blemishes.

We will find out in the coming months whether prosecutorial discretion will again become an avenue for seeking relief from deportation, especially in cases where a person qualifies for a provisional waiver of unlawful presence.