Removal Defense – Relief from Removal Proceedings

United States immigration law provides that a foreign national in removal proceedings as a result of being found deportable or inadmissible can apply for certain forms of relief. As a general overview, some of forms of relief that may be available include:

Cancellation of Removal for Permanent Residents

An individual may be able to seek this form of relief from removal proceedings if they have been a Permanent Resident for not less than five years, have resided in the U.S. continuously for seven years after having been admitted in any status, and have not been convicted of any aggravated felonies. Additionally, an applicant must show that he or she is deserving of discretion, which essentially means that the good in someone’s life outweighs the bad.

Cancellation of Removal for Non-Permanent Residents

This form of relief can be much more difficult to obtain. It requires that the applicant show that he or she has ten years of continuous physical presence, has good moral character, has not been convicted of certain offenses, and can establish that their removal would result in exceptionally and extremely unusual hardship to the individual’s spouse, parent, or child who is a U.S. citizen or lawful permanent resident.

The factors identified by the Board of Immigration Appeal (BIA) to determine exceptional and extremely unusual hardship include the ages, health, and circumstances of qualifying relatives. For example, an applicant who has elderly parents in this country who are dependent solely upon the applicant for support might well have a strong case. Another strong applicant might have a qualifying child with very serious health issues, or compelling special needs in school. A lower standard of living or adverse country conditions in the country of return are factors to consider, but generally will be insufficient in themselves to support a finding of exceptional and extremely unusual hardship.

The leading case where the standard was met was Matter of Recinas, 23 I&N Dec. 467 (BIA 2002). Ariadna Recinas was a 39-year-old citizen of Mexico and the single mother of six children, four of whom were USCs aged 12, 11, 8, and 5 years. The three respondents had lived in the United States since 1988. Ms. Recinas also had two LPR parents and five USC siblings living in the United States. She had no immediate relatives living in Mexico. Recinas’ mother cared for her children while Ms. Recinas managed her own vehicle inspection business. Ms. Recinas lived near her mother, who had a close relationship with the children. The father of Ms. Recinas’ children was not involved in their lives and was in immigration proceedings at the same time Ms. Recinas was in proceedings. Considering these factors in the aggregate showed exceptional and extremely unusual hardship.

Cancellation of Removal for Victims of Domestic Violence

The Violence Against Women Act provides forms of relief for individuals who have been battered or subject to extreme cruelty by a spouse or parent who is a U.S. citizen or permanent resident. The law also applies to parents of U.S. citizen or permanent resident children, where the child has been battered or subject to extreme cruelty. In addition to that requirement, the applicant must also show that he or she has been physical present in the U.S. for a continuous period of 3 years, has maintained good moral character, has not been convicted of certain offences, and can show that the applicant’s removal would result in extreme hardship to the applicant, the applicant’s child, or the applicant’s parent.

U-Visa for victims of certain crimes

An individual that has been a victim of certain crimes that have occurred in the U.S. may be eligible to apply for a U’ visa and request that their removal proceedings be terminated. The applicant, or the applicant’s child, must has have suffered substantial physical or mental abuse, possesses information of the criminal activity, as well as have been helpful, is being helpful, or is likely to be helpful to a law enforcement official, prosecutor, or judge.

Special Immigrant Juvenile

A child may apply to obtain permanent resident status if the child has been declared dependent on a juvenile court or placed in custody in accordance with state law, whose reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law, and it has been determined in those proceedings that it is not in best interest of the child to return the child to his or her country of origin or last habitual residence.

Adjustment of Status to Permanent Resident

Certain individuals may be able to seek to obtain permanent resident status in the U.S. without having to depart to apply at a U.S. consulate abroad. To qualify, an individual must have the immediate availability of a U.S. visa, such as: the spouse or minor child of a U.S. citizen; a parent of a U.S. citizen that is above the age of 21; or an individual that has had either a family or employment based immigrant petition filed on their behalf for which the priority date is current under the visa bulletin. Additionally, the individual must have been inspected and admitted or paroled and not have been convicted of certain crimes unless they qualify for a waiver. Further, the applicant must be in status, and not have worked without authorization, unless the applicant qualifies for an exception, such as being the spouse or child of a U.S. citizen, or parent of a U.S. citizen that is over the age of 21. There are also broad exception under the Immigration and Nationality Act 245(i) for individuals that: had family or employment based immigrant petitions or labor certifications filed on their behalf prior to April 30, 2001; have been physically present in the U.S. since December 21, 2000 if their immigrant petition or labor certification was filed on their behalf after January 14, 1998; and pay a penalty fee of $1,000.

Asylum and Withholding of Removal

An individual may also be able to seek asylum or withholding of removal based on the individual’s past persecution or a well-founded fear of future persecution on account of their race, religion, nationality, political opinion or membership in a particular social group. Additionally, the persecution must be inflicted by the government of the foreign country or by a group the government is unable or unwilling to control. Further, the individual cannot have been convicted of certain crimes. Asylum is also discretionary and the individual must generally have applied for asylum within one year of entry. Withholding of removal, however, has no filing deadline and does not requiring showing an an individual is deserving of discretion.

Cancellation of Removal for Permanent Residents

Cancellation of Removal for Non-Permanent Residents

Cancellation of Removal for Victims of Domestic Violence

U-Visa for victims of certain crimes

Special Immigrant Juvenile

Adjustment of Status to Permanent Resident

Asylum and Withholding of Removal