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What was previously known as deportation, i.e., the forced removal of an individual from the United States, is now referred to as “removal”. The controlling laws as it relates to the basis for removal of an individual from the United States can be found under the Immigration and Nationality Act, sections 212 (law governing admissibility) and 237 (law governing removability).
There are many different forms of relief for individuals who find themselves in removal proceedings. The following is a sample of some of the most commonly referenced forms of relief from removal from the United States.
When an individual is detained, they may either be issued a bond by ICE (Immigration and Custom Enforcement), or must request a bond directly from an Immigration Judge, if eligible to do so. The purpose of the bond is to ensure that the detainee will return to immigration court (delivery bond), as they generally find themselves in removal proceedings at this stage. In either case, it is important that the detainee be prepared to present all positive factors in their case.
The amount of bond set, if any, depends on the detainee’s immigration history, criminal history, employment history, length of time in the United States, and family ties to the United States. Often, the case is reviewed to determine if there is any form of relief, i.e, whether the detainee is eligible for any programs that would allow them to stay in the United States and cancel their removal from the United States.
Under INA § 240A,
“The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien –
- has been an alien lawfully admitted for permanent residence for not less than 5 years,
- has resided in the United States continuously for 7 years after having been admitted in any status, and
- has not been convicted of any aggravated felony.”
Cancellation of removal is a program used by many legal permanent residents to stop their removal from the United States. The program is discretionary, so it is important that the respondent (i.e., the individual in removal proceedings), present all evidence that would cast the best light on them.
An undocumented individual who finds themselves in removal proceedings because they are inadmissible or deportable can cancel their deportation and obtain status if:
- they have been physically present in the United States continuously for at least ten years;
- they have had good moral character for ten years;
- they have not been convicted of certain offenses; and
- their removal from the United States would cause exceptional and extremely unusual hardship to their legal permanent resident or U.S. citizen spouse, child, or parent.
Non-LPR cancellation of removal is not available to individuals:
- who previously received cancellation of removal, suspension of deportation, or INA § 212(c) relief;
- who persecuted others, or are inadmissible or deportable under the anti-terrorist grounds; or
- crewmen who entered after June 30, 1964, and certain “J” visa exchange visitors.
Asylum is reserved for individuals who have suffered persecution at the hands of their government, or a group the government cannot control. An applicant must demonstrate that they have been the victim of past persecution, or that they have a well-founded fear of future persecution, on account of their:
- political opinion, or
- membership in a particular social group.
Asylum is generally presented before USCIS. However, when an individual is in removal proceedings, they may also request asylum before an immigration judge. (*Please see Victims section of this website for additional information).
In certain situations, when an individual has been ordered removed, their actual physical removal from the United States may be postponed. ICE may decide not to execute a final removal order and may instead issue an Order of Supervision. This order will allow an individual to live and work in the United States, but they must continue to comply with the order and periodically check-in with ICE, as directed.
Orders of Supervision may be issued when an individual’s country of origin refuses to accept them back into the country, or it is contrary to the public interest to remove the individual from the United States. Orders of Supervision may also be issued for humanitarian reasons, such as when an individual is the primary caregiver to an immediate family member who suffers from a medical condition, or if they themselves are receiving medical treatment for a serious condition.
An individual may request an Order of Supervision from ICE by submitting Form I-246, Application for Stay of Removal, to ICE, with evidence for the basis of their request. The Stay is generally granted for 1 year, and must be renewed on an annual basis. Travel outside of the United States is not permitted, however.
An INA § 237(a)(1)(H) waiver is available to individuals in removal proceedings who were inadmissible at the time of their admission or adjustment of status due to fraud, but who were nevertheless granted legal permanent resident status. The waiver is often used to prevent the removal of sons/daughters of legal permanent residents who were married at the time of being granted resident status (children of legal permanent residents must be single when obtaining residency through a parent). The waiver can, however, also be used to waive other types of fraud, including marriage fraud.
A § 237(a)(1)(H) applicant must demonstrate that they:
- were granted legal permanent resident (LPR) status;
- were inadmissible under section § 212(a)(6)(C)(i) at the time of being granted LPR status;
- are the spouse, parent, son or daughter of a U.S. citizen or LPR; and
- were otherwise admissible when granted LPR status “except for those grounds of inadmissibility that were a direct result of that fraud or misrepresentation.”
Waiver of removal for fraud or misrepresentation granted under § 237(a)(1)(H) shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.
A motion to reopen is the process whereby an individual seeks to have an immigration judge, or the Board of Immigration Appeals, reopen their case and dismiss their previously issued removal (deportation) order. Once the case is reopened, the individual may seek any form of relief available to them. Some of the bases for reopening a case may include lack of notice, compelling circumstances, or new evidence not previously available.
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United States Citizenship and Immigration Services
National Visa Center
U.S. Department of State
U.S. Department of State Visa Bulletin
Executive Office of Immigration Review
Board of Immigration Appeals
U.S. Supreme Court
American Immigration Lawyers Association
Immigrant Legal Resource Center
The Catholic Legal Immigration Network, Inc.
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