When an Immigration Judge has found that an alien is illegally present in the United States, it does not necessarily mean that the person must be deported. The Immigration Laws provides many types of ways to prevent Removal (deportation).
Waivers The immigration law lists various grounds by which a person in a deportation proceeding may apply for a Waiver. Waivers require establishing hardship to himself or to his close family members if he were to be removed from the U.S.
Cancellation of Removal for Permanent Residents A grant of an Application for Cancellation Removal has the effect returning his status to that of a lawful permanent resident.
- He has been a Lawful Permanent Resident for a minimum of five years
- 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
Cancellation of Removal for Non Permanent Residents The Requirements:
- He has been physically present in the U.S. for a continuous period of ten years prior to the institution of removal proceedings
- He has been a person of good moral character for ten years
- He cannot be inadmissible under criminal and security grounds or deportable under for marriage fraud, failure to register and falsification of documents.
- He established exceptional and extremely unusual hardship to a qualifying U.S. citizen or lawful permanent resident spouse, parent or child. (Note: not hardship to the applicant).
Cancellation of Removal for Battered Spouse A battered spouse must firstly be put into deportation (or "removal" under the new law) proceedings. She must demonstrate three years of continuous physical presence in the United States, instead of ten years as applicable to other individuals.
The applicant for cancellation must demonstrate good moral character and must not be inadmissible under: 1. Section 212(a)(2) - criminal and related grounds 2. Section 212(a)(3) - security and related grounds 3. Section 237(a)(1)(G) - marriage fraud 4. Section 237(a)(2) - criminal offenses 5. Section 237(a)(3) - document fraud 6. Section 237(a)(4) - security and related grounds The applicant, furthermore, must not have been convicted of an aggravated felony. Most difficult is the requirement that the applicant demonstrate that removal would result in extreme hardship. While the battered spouse or child has to demonstrate "extreme hardship", others need to show "extreme and unusual hardship." Unlike in the cancellation of removal for other individuals who have to show "extreme and unusual hardship" to a citizen or resident relative, extreme hardship alone to the battered applicant would suffice. Suspension of Deportation Any deportation 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. The “seven year law" is more generous than Cancellation of Removal. 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 (Green Card).
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
- Membership in a particular social group
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 Amnesty 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. Citizenship Anyone that has fulfilled the requirements for naturalization may request that the case be either terminated or held in abeyance pending the results of the citizenship application. Voluntary Departure I n most case, if there is no special relief available that would stop the deportation, the alien may apply for Voluntary Departure. Once it is granted the alien will have 4 months to leave the United States.