When an alien is determined to be removable, if eligible, they can apply for one or more forms of relief to avoid having to leave the United States (otherwise known as "deportation"). The types of relief are generally divided into two categories: discretionary relief and administrative/judicial relief. Following is a list of some of the types of relief in both categories that an individual may seek to avoid removal.
Discretionary relief is available while removal proceedings are being conducted. The burden of proof is placed on the alien to show that they are eligible for relief under the law, and that they deserve such relief as an exercise of the immigration judge’s discretion.
Cancellation of Removal
Cancellation of Removal is a form of relief that is available to qualifying lawful permanent residents and qualifying non-permanent residents. Under this benefit, an individual’s status is adjusted from “deportable” to “lawfully admitted for permanent residence.” An application for cancellation of removal is made during the course of a hearing before an immigration judge.
Under immigration law, an alien may be granted asylum if they qualify as a “refugee.” An asylum applicant must demonstrate an inability to return to their home country because of past persecution or a well-founded fear of future persecution based upon their race, religion, nationality, membership in a particular social group, or political opinion. To apply for asylum, an alien should file Form I-589 within one year of their arrival into the U.S.
Adjustment of Status
This is a form of relief where an individual's immigration status while in the U.S. is changed from temporary nonimmigrant to permanent resident. Those who qualify for visas allowing an adjustment of status are often petitioned for by a spouse, other family member, or an employer. Aliens who have engaged in criminal activity, failed to appear for proceedings or failed to depart after a grant of voluntary departure, may be ineligible for adjustment of status.
Voluntary Departure is often viewed as a relief of last resort. It allows an alien to leave the U.S. without a stigmatizing formal removal order. An alien allowed to voluntarily depart admits removability, but does not have a bar to seeking admission at a port-of-entry at any time. If an alien fails to depart within the time granted, they will receive a fine and a 10-year bar to several forms of relief from deportation.
Administrative and judicial forms of relief are available to an alien after removal hearings have ended. These forms of relief are similar to appeals because they seek to overturn or challenge an order issued by an immigration judge.
Administrative Appeals and Judicial Review
When an alien or DHS disagrees with the decision of an immigration judge, they can appeal to the BIA to have the immigration judge’s ruling overturned. The BIA is an administrative body that has the authority to interpret Federal immigration laws. An appeal of an immigration judge’s decision must be received by the BIA within 30 days from the date it was issued by the court.
Under the immigration laws, the Federal Courts of Appeal have the authority to hear certain decisions appealed from the BIA. If an alien disagrees with the rulings of the BIA, they may be able to appeal to the Federal courts. An alien has 30 days from the date of a final removal decision to file a judicial appeal. The process for filing a judicial review is very complex and a qualified immigration attorney should be consulted.
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