HOW TO AVOID
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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.
WAIVERS
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).
Certain types of waivers such
as relief for long-term permaennt residents under section 212(c) do
not require that the permanent resident have relatives in the U.S.
although the presence of such relatives is definitely a positive
factor.
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:
- He has been an LPR for a minimum of five years;
- 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);
- He has not been convicted of an aggravated felony;
- 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.
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. who:
- 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.
- Has been a person of good moral character for ten years;
- Is not 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).
- Whose removal would result in exceptional and
extremely unusual hardship to his/her spouse, parent, or child, who is
a citizen of the United States or an alien lawfully admitted for permanent residence.
Special relaxed rules for cancellation of removal
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.
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:
- 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.
- He must be a person of good moral character.
- 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.
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:
- Political opinion
- Religious belief
- Nationality
- Race
- 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.
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.
VOLUNTARY DEPARTURE
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.
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