What Forms of Relief are Available from Removal?
During removal proceedings, the US government may argue why an alien should not be allowed to enter the country or why the alien should be removed (or deported) from the US. The alien has the right to argue why he or she should be allowed to enter the country, why he or she should not be deported and why he or she is entitled to another form of relief. At the conclusion of the removal hearing, an immigration judge will determine whether the alien should be deported and whether he or she is eligible for a discretionary form of relief (this means a form of relief that the judge has the power to grant or deny). These forms of relief may include:
Cancellation of Removal
In rare cases, an alien may be eligible to have the removal proceedings cancelled. This can occur for legal permanent residents and those in the US on nonimmigrant visas. The eligibility requirements for this form of relief are based on years of residence and physical presence in the US. For legal permanent residents, they must have held this status for at least five years and continuously lived in the US for at least seven years after they were legally admitted to the country. Additionally, legal permanent residents cannot have been convicted for an aggravated felony.
For those without permanent resident status, they must have be continuously present within the US for the last 10 years, and during that time period, exhibited good moral character. This means they may not have committed a deportable offense or other acts showing poor character, like failure to pay child support or alimony. They also must be able to show that deportation would create an exceptional and extremely unusual hardship for themselves and/or their immediate family, which includes spouses, children and parents who must hold legal permanent resident status or US citizenship. This can be a very difficult standard to prove.
Adjustment of Status
Aliens who entered the US with a nonimmigrant status (i.e. a temporary visa) may be able to change their immigration status to that of a legal permanent resident. By adjusting their status, the aliens would be able to avoid removal from the country. This form of relief would be available in instances when an alien overstayed his or her departure date for a nonimmigrant visa or had not received a change or extension of status prior to the departure date. In order to receive an adjustment of status, the alien must be admissible as a legal permanent resident and there must be a visa immediately available at the time the application for permanent residence is made. This most often occurs in cases of family sponsorship, including marriage to a US citizen, and employer-sponsorship.
This is the most common form of relief offered by immigration judges. It requires aliens to leave the country on their own accord and their own expense either prior to the completion of removal proceedings or at completion. Aliens can either return to their home countries or to another country that will accept them. The immigration judge is allowed to determine how long the alien has to depart the US once voluntary departure has been accepted by the alien. Generally, if the alien selects to voluntarily depart prior to the conclusion of the removal proceedings, he or she has 120 days to leave the US. If the alien waits until the removal proceedings have ended, he or she is given 60 days to leave. If an alien fails to depart within the time period specified by the immigration judge, he or she will be subject to fines and a 10 year ineligibility period for other forms of relief from removal.
In some instances, foreign nationals will travel without authorization to a US border seeking entry in the country for asylum protection. Others may have entered the US on another status and seek to change their immigration status to asylee status or have entered the country illegally and seek asylum.
Immigration judges have the ability to grant asylum to those who meet the requirements for the protected status. In order to receive asylee status, the alien must meet the definition of a refugee. Under US law, a refugee is someone who has a credible fear of returning to his or her home country because of past or future persecution based on his or her religion, race, ethnicity or inclusion in a specific social or political group. Aliens may be ineligible to receive asylum if they have been convicted of an aggravated felony, pose a national security threat or previously have been denied asylum by an immigration judge. Aliens who entered the US more than one year ago, whether legally or illegally, and failed to file for asylum during that time period also may be ineligible for asylum.
Not all aliens will be eligible for one of these types of relief. For legal advice tailored to your specific removal questions, speak with an experienced immigration attorney in your area. Removal proceedings are serious matters and should not be taken lightly.
Copyright © 2008 FindLaw, a Thomson Reuters business
DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.
Back to Current FAQ
View Previous Selections