Deportation Defense

Relief From Removal

The following forms are the most common forms of relief from removal:

  • Asylum – INA § 101(a)(42) and INA § 208

    • A person must prove inability or unwillingness to return to her native country because of persecution or a well-founded fear of persecution, on account of race, religion, national origin, political opinion, or membership in a particular social group. The individual must also prove that he or she merits positive exercise of discretion.

  • Withholding of Removal – INA § 241(b)(3)

    • A person may not be returned to a country where it is determined that there is a clear probability that her life or freedom would be threatened, on account of race, religion, national origin, political opinion or membership in a particular social group.

  • Convention Against Torture (CAT) – 8 C.F.R. § 208.16 to .18

    • A person may not be returned to a country where there is a clear probability that he or she would be subject to torture, at the instigation of, or with the acquiescence of, a public official or one acting in an official capacity.

  • Cancellation of Removal for Permanent Residents – INA § 240A(a)

    • A person must prove the following:

      • Lawful admission for permanent residence for not less than five years;

      • Seven years of continuous residence in the U.S. after admission in any status;

      • No conviction for aggravated felonies under section 101(a)(43) of the Act;

      • Positive exercise of discretion is merited.

  • Cancellation of Removal for Non-Permanent Residents - INA § 240A(b)

    • A person must prove the following:

      • Continuous physical presence of at least 10 years preceding the date of application;

      • Good moral character during that period;

      • No conviction for offenses related to good moral character; drugs; firearms resulting in admissibility under sections 212(a)(2) or 237(a)(2) of the Act; or terrorism under section 237(a)(3);

      • Exceptional and extremely unusual hardship to United States Citizen (USC) or Legal Permanent Resident (LPR) spouse, parent or child as result of removal;

      • Positive exercise of discretion is merited.

  • Violence Against Women Act (VAWA) - INA § 204(A)(1)(A)(iii)-(iv), 204(a)(1)(B)(ii)-(iii)

    • The immigration law provisions allow a spouse and children, or parents of children, who have been abused or subject to extreme cruelty by their legal permanent resident (LPR) or United States citizen (USC) spouse or parent, to obtain lawful status without having to rely on a petition filed by the perpetrator of the abuse.

      • Battered spouse must show:

        • Noncitizen marriage was in good faith;

        • During the marriage, the noncitizen spouse or her/his child was battered or subjected to extreme cruelty by the LPR or USC;

        • Past or present residence with the LPR or USC;

        • Current residence in the U.S. or living abroad, abusive spouse is a U.S. government employee or member of uniformed services, or subjected the noncitizen to battery or extreme cruelty in the U.S.;

        • Abusing spouse is an LPR or USC at time of petition by the battered spouse and at a time of its approval, or was an LPR or USC and lost such status as a result of domestic violence.

    • Even though the noncitizen may have divorced the abuser at the time of filing the petition, the spouse must show:

      • The battering or cruelty "led to" or caused the divorce, and

      • Must file the petition within two years of divorce.

  • Immigrants Who Are Victims of Crimes "U Visa" - INA § 101(a)(15)(U)(i)(I)

    • The U visa is for a person who has been a victim of a serious violent crime and provides the law enforcement agencies with the ability to investigate and prosecute certain types of criminal cases, including: domestic violence, sexual assault, trafficking of aliens and other crimes, while at the same time offering protection to victims of such crimes.

      • The requirements for the U visa are:
        • Must have suffered substantial physical or mental abuse due to a criminal activity in at least one of the following categories: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage situations, peonage, false imprisonment, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury or attempt, conspiracy or solicitation to commit any of the above-mentioned crimes.
        • Must include information on how the victim can assist government officials in learning more about the crime including investigation and/or prosecution of the individual(s) who committed the crime.
        • The victim must also be willing to work with local law enforcement. The crime must have occurred in the United States or in a U.S. territory, or violated U.S. law.
    • The purpose of the U visa is to give victims of certain crimes temporary legal status and work eligibility in the United States for up to four years.

    • The U visa is a nonimmigrant visa and only 10,000 U visas may be issued every fiscal year. Family members may also be included on the petition including spouses, children, unmarried sisters and brothers under 18, mothers, fathers, as well as stepparents and adoptive parents.

  • Adjustment of Status – INA § 245

    • A person must show the following:

      • Admission or parole into the U.S.;

      • Eligibility to receive an immigrant visa;

      • Non-inadmissibility under section 212(a) of the Act;

      • Maintenance of lawful status (unless an immediate relative of a U.S.C.);

      • An immigrant visa is immediately available;

      • Positive exercise of discretion is merited.

    • Note: Individuals who are eligible for the benefits of the former section 245(i) may quality for adjustment of status without lawful admission or maintenance of lawful status.

  • Registry - INA § 249

    • A person must show the following:

      • Entry into the U.S. prior to 1/1/1972;

      • Continuous residence since that time;

      • Good moral character (no specific period stated);

      • Not ineligible for citizenship;

      • Not a criminal, immoral person, subversive, smuggler, violator of drug laws or terrorist.

  • Waiver - INA § 212(h)

    • A person must show the following:

      • She/He is the spouse, parent, son or daughter of USC or LPR;

      • Denial of the waiver would result in extreme hardship to her USC or LPR spouse, parent, son or daughter;

      • Consent has been given by the attorney general to seek a visa, admission or adjustment of status;

      • Positive exercise of discretion is merited.

    • This waiver is not available to persons convicted of murder, torture or attempt or conspiracy to commit murder or torture. It is also not available to LPRs who have been convicted of aggravated felonies or have not resided in the U.S. for at least seven years preceding the date of application of this form of relief.

    • This form of relief waives only certain crimes involving moral turpitude, prostitution and other nondrug-related offenses, unless the offense relates to a single offense of possession of 30 grams or less of marijuana.

  • Waiver - INA § 212(i)

    • A person must prove the following:

      • He/She is the spouse, parent, son or daughter of USC or LPR;

      • Denial or the waiver would result in extreme hardship to her USC or LPR spouse or parent.

      • Positive exercise of discretion is merited.

    • This form of relief is only available to waive fraud or misrepresentation under section 212(a)(6)(C)(i) of the Act. It waives no other ground of inadmissibility and does not waive false claims to citizenship under INA § 212(a)(6)(C)(ii).

  • Waiver - INA § 212(d)(11)

    • Available only to LPRs seeking a waiver for smuggling as described in INA § 212(a)(6)(D)(i), who have smuggled, induced or assisted in smuggling their spouse, parent, son or daughter (and no one else); and merit discretion for humanitarian purposes; to assure family unity; or other reasons in the public interest.

  • Voluntary Departure - INA § 240B

    • Prior to completion of proceedings:

      • Not removable as an aggravated felon or terrorist;

      • Must be willing to depart the U.S.;

      • Must depart at own expense;

      • Period limited to 120 days and cannot be extended;

      • Must waive all appeals and forego other forms of relief;

      • Not available to arriving aliens.

    • At the conclusion of proceedings:

      • Physical presence for a period of at least one year prior to being served with a Notice To Appear (NTA);

      • Good moral character for a period of at least five years preceding the application for voluntary departure;

      • Not removable as aggravated felon or terrorist;

      • Clear, convincing evidence of financial means to depart and intent to do so;

      • Limited to a period of 60 days;

      • Passport or other travel document may be required.

  • Review of the Denial by the Immigration and Naturalization Service of Removal OR Waiver of Conditional Basis for Permanent Residence:

    • Joint petition to remove conditional basis of lawful permanent resident status for alien spouse.

    • Waiver of requirement to file joint petition to remove conditions by alien spouse.

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