Cancellation of Removal for Certain Non-Permanent Residents:
Cancellation of Removal is a defense against deportation, available to a person who has been placed in removal proceedings, and issued a notice to appear (NTA), by the Department of Homeland Security, (DHS) who has;
1) Lived and resided continuously in the United States for at least ten years, 2) Has been a person of “good moral character” (GMC) during the preceding ten years, 3) is not subject to certain criminal bars1 , and 4) whose removal, or deportation, would result in an “exceptional and extremely unusual hardship” to that person’s legal permanent resident (LPR) or united states citizen (USC) spouse, parent, or child. A person who can satisfy all of these requirements is eligible to apply to “cancel” their deportation, and in some cases received employment authorization (work permit). A person who not only satisfies all the above requirements but also proves the “exceptional and extremely unusual hardship standard” to an immigration judge during his or her individual merits hearing can qualify to become an LPR.2
- Cancellation of Removal-VAWA (Violence Against Women Act) The Violence Against Women’s Act allows for Cancellation of Removal and in certain cases where the spouse child, or parent of a USC or LPR has been subjected to battery or extreme cruelty. In addition to the battery or extreme cruelty, a VAWA petitioner must prove 1) three or more years of continuous physical presence in the United States prior to the VAWA application, 2) demonstrate good moral character during the time preceding the VAWA application, and 3) that their removal from the country would result in extreme hardship to the VAWA petitioner, or their USC/LPR parent or child. A successful VAWA petition can result in the grant of LPR status3
- Cancellation of Removal- NACARA (Nicaraguan Adjustment and Central American Relief Act) Certain individuals from Nicaragua and other Central American countries are eligible for Cancellation of Removal under NACARA. The requirements are based upon the nationality of the person applying. For more information please contact an Alcock & Associates Immigration Attorney.
Cancellation of Removal for Lawful Permanent Residents
- A lawful permanent resident (LPR) may be placed in removal proceedings and subject to deportation for committing certain crimes which make them inadmissible or removable. Cancellation of Removal under INA 240A(a) is available to any LPR who has resided in the United States 7 years prior to application after being admitted in any status, 2) has been an LPR for at least 5 years, and 3) has not been convicted of any aggravated felony4. An LPR who has been granted Cancellation of Removal by an immigration judge gets their residency reinstated, but this particular form of relief is only available once in a lifetime!
Asylum/Withholding of Removal/Convention Against Torture
- Asylum: A person is eligible to apply for Asylum if they can establish a past or well founded fear of persecution upon return to their country of origin. The persecution must be based on race, religion, social status, nationality, or political opinion. The asylum application must be submitted within one year of arriving in the United States, unless the applicant can demonstrate exceptional circumstances or changed country conditions. A person seeking asylum may petition for employment authorization (work permit) 180 days after their application is filed in open court. If asylum is granted, a person can file to become an LPR after one year5.
- Withholding of Removal: The criteria for Withholding of Removal is similar to Asylum, but under Withholding the applicant bears a heavier burden of proof. Rather than Asylum’s credible fear standard, under Withholding of Removal an applicant must demonstrate how their life or freedom would be endangered if returned to their home country. One advantage to Withholding of Removal is that there is no 1 year statutory filing limit upon arrival to the United States, meaning if a potential Asylum applicant did not file in time and could not demonstrate changed country conditions or extraordinary circumstances, Withholding of Removal may still be available6.
- Convention Against Torture (CAT): The Convention Against Torture holds that no person shall be removed to a country where it is “more likely than not” that they will be subjected to torture. The person applying for Withholding of Removal under CAT must demonstrate, through evidence or testimony, to an immigration judge that they would likely be tortured if removed from the United States to a different country. Like Asylum and Withholding of Removal, CAT is discretionary and certain criminal convictions may bar relief. Furthermore, a person who participated in the persecution of others will be barred from relief under CAT. Winning a CAT or Withholding claim only results in deferred removal, which may be terminated in the future.
Voluntary Departure: A person who has been arrested for a crime and subsequently detained by Immigration Customs and Enforcement (ICE) and does not qualify for any other form of immigration relief may still be able to secure a bond, be released from detention, and remain in the United States for a limited time- if they qualify for Voluntary Departure. Pursuant to INA 240 (B)- a person may voluntarily depart the United States at their own expense so long as they are not removable for certain criminal or security-related grounds7.
- Pre-conclusion voluntary departure: Upon the order of an immigration judge, the person seeking voluntary departure will be given up to 120 days (4 months) from the date of the order to depart the United States. Sometimes a judge will require a the person to post a bond, usually when they have substantial criminal history.
- Post-conclusion voluntary departure: At the conclusion of a Cancellation of Removal proceeding, if an Immigration judge decides not to grant Cancellation, in some cases a person may still be eligible for post-conclusion voluntary departure. If granted, the person will have up to 60 days (2 months) to depart. To be eligible for post conclusion voluntary departure, the applicant must demonstrate: 1) at least 1 year of continuous physical presence in the United States, 2) good moral character for 5 years prior to the application, 3) no criminal or security related bars to grant of voluntary departure, and 4) clear and convincing evidence that the person means to depart the US and intends to do so. Under most circumstances, a grant of post conclusion voluntary departure will require the person to post a bond in an amount necessary to ensure departure8.
Adjustment of Status: A person who was inspected, admitted, or paroled into the United States, or any person with an approved petition for classification (such as an I-130 filed prior to April 30, 2001, or a VAWA self petitioner, for example) may adjust their status to that of a lawful permanent resident (LPR) if 1) the person applies for adjustment, and 2) there is an immediately available immigrant VISA for the petitioner, and 3) the person is admissible9.
- Adjustment of Status under INA 245(i): A person physically present in the United States but who entered without inspection (EWI), aka illegally, or their beneficiary (spouse or children) is eligible to adjust to LPR status if an I-130 petition was filed on their behalf prior to April 30, 2001. The unauthorized entry must be waived by paying a 1,000 fee10 with the adjustment application.
Naturalization: A person who can apply to naturalize and become a citizen of the United States if he or she 1) has been a legal permanent resident for 5 years prior to applying, 2) resided continuously in the United States during that time, 3) demonstrated good moral character, 4) lived in the jurisdiction in which they are filing for citizenship for at least 3 months, and 5) can read, write, and speak English and demonstrate an understanding of civics at a naturalization interview. If able to demonstrate these requirements, a person may file an N-400 Application for Citizenship with his or her local USCIS office. After a processing time, the applicant will receive a citizenship interview where a USCIS officer will assess their eligibility, test their English and civics, and recommend for citizenship if satisfied. The applicant will subsequently be sworn in at their local USCIS office with other recently approved applicants.
Prosecutorial Discretion: This is a new form of relief that began under the Obama Administration, available to individuals placed in removal proceedings 1) who may have been considered for amnesty under the Dream Act11, 2) who have zero or minimal criminal history in their background, or 3) who merit discretion upon review of their case by a DHS attorney for any other reason. At this time, the effect of prosecutorial discretion is administrative closure of immigration proceedings, with no change in immigration status or accompanying work authorization benefit.
- BIA (Board of Immigration Appeals) – These are appeals from Immigration Judge decisions, both detained and non-detained; appeals from family-based petition denials; denials of non-immigrant waivers.
- AAO (Administrative Appeal Office) – These are denials of adjustment applications; immigrant waivers; district office and service center denials of all other non-BIA cases
- 9th Circuit Court of Appeals – These are direct appeals of any BIA or AAO denials (with certain limited exception)
OTHER FEDERAL COURT ACTION:
- Mandamus Actions – These are actions filed in Federal Court to force USCIS to act on a particular file. For example, if a naturalization case has been pending for more than 120 days since the interview, we can file a Mandamus to force USCIS to make a decision on the case in a timely manner.
- Petition for Naturalization – These are federal petitions to become a citizen and can be made directly to federal court after USCIS has denied a naturalization case.
CONSULAR PROCESSING AND WAIVERS:
- Consular Processing – These are matters that are having issues obtaining visas at overseas consulates and processing visa petitions through the National Visa Office.
- Waivers – These are for EWI or overstays that require a waiver overseas. However, please be aware that a new regulation that will allow for these waivers to be completed in the US should be finalized sometime this summer.
- H-1B Non-immigrant worker – These are specialty worker cases that require a US bachelorette degree or equivalent and are based on a petition from a US employer.
- H-2B Seasonal Worker – These cases do not require a specific degree but rather help the needs of US companies satisfy seasonal work in areas of agriculture, tourism and in some cases trucking.
- E1/2 and E-5 Investor Visas – These are cases of individuals seeking visas based on investment in the US of $100,000 – $1,000,000.
- L-1A/B Manager Transfers – These are cases of multinational companies seeking to bring over managers from other parts of the world.
- R Visas – These are religious worker visas
- O/P Visas – These are entertainer/performer and professional athlete visas.
- PERM Cases – These are permanent resident employment based visas by US companies
Disclaimer: The following information contains the primary areas of practice for the immigration attorneys at Alcock & Associates. It is by no means an exclusive list. The information contained below is for informational purposes only and is not intended to be relied on for legal advice nor create an attorney-client relationship. Please direct specific questions or concerns to an immigration lawyer at www.alcocklaw.com. Thank you.
1Crimes outlined in the Immigration and Nationality Act, (INA) subsection 212(a) (2), 237 (a)(2), (3) or (4).
2There is a federally mandated statutory number of 4,000 grants per year.
3All forms of Cancellation of Removal are discretionary.
4Generally a crime of violence as defined by 16 U.S.C. 18, with a sentence of year or more imposed, and other crimes outlined in
5Like Cancellation of Removal, Asylum/Withholding of Removal/ and CAT are also discretionary forms of relief, meaning an immigration judge decides based on merit of the person applying. A person convicted of certain crimes or considered a security threat under
6A grant of withholding does not prevent DHS from removing the person to a different country besides their home country. 8 C.F.R. §1208.16(f)
7 INA 237(a)(2)(A)(iii) and INA 237(a)(4)(B)
8Amount necessary to ensure departure is left to the discretion of the immigration judge, a variety of factors including economic means and criminal history can determine this amount.
9Not subject to removability or inadmissibility for criminal grounds, security grounds, or under any other section of the INA.
10 Illegal entry penalty is not applicable to a child under the age of 17 at the time of entry
11Dream Act has not been ratified at the time of this writing.