In Parts I and II of this series, I wrote of how a case gets to immigration court and subsequently the basics of immigration court including what to expect at an immigration hearing. In Part III of this series, I would like to discuss the avenues for “relief from removal” when your case is in immigration court.
What does relief from removal mean?
Simply put, in layman’s terms relief from removal is an application you make to the court to prevent you from being removed (deported) from the USA. For example, the US may have claimed that you have committed a crime which is deportable. Or the government may have claimed that you overstayed your visa. Or, the government may have claimed that you entered with fraudulent documents or without inspection. In all of these cases, there may be some form of relief from removal which may allow you to remain in the United States and potentially petition for permanent residency (green card). In addition, some of these avenues for relief may have to be paired with an application for a waiver. Certain grounds of removeability in certain offenses are eligible for waivers, while others are not.
Simply because the scope from removal is so incredibly vast, it is not going to be possible to cover each and every reason for removal and pair that with an analysis of relief from removal for that particular charge. However, the goal of this article is to present you with some of the main avenues under which relief from removal may be available on your particular case. As always, please do consult a qualified, competent immigration attorney in order to determine what the best course of action may be in your particular case.
Having said this, let me now get directly to the point and list for you some of the “relief” available under the Immigration Act. Prior to 1996 there was considerably more relief available. However, in 1996, with the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), the much used “§ 212 (c)” waiver was abolished. Sadly enough, this waiver was a most useful waiver because it stopped the removal of deserving aliens who had been in the United States for at least seven years or more including those who may have committed certain aggravated felonies However, we now live in a world where there is no 212 (c) waivers available other than for cases which where filed prior to the enactment of the IIRIRA.
Therefore, the first avenue of relief from removal is whether you qualify for a § 212 (c) waiver. In order to qualify for such a waiver, your crime must have been committed prior to September 30, 1996. Additionally, you must have pled to this crime rather than have been tried and found guilty by a judge or a jury. Finally, you must have accrued at least seven years of residence in this country (not necessarily in lawful state, but you must show seven years of residence) in order to qualify for a § 212 (c) waiver. Even though the IIRIRA removed the § 212 (c) waiver, the Supreme Court held in INS v. St.Cyr that the IIRIRA could not do so retroactively. Therefore, criminal pleas prior to September 30, 1996 may still be eligible for § 212 (c) relief.
However, in another interesting development, the Board of Immigration Appeals is attempting to limit the Supreme Court’s validation of § 212 (c) relief by claiming that only certain types of offenses are eligible for § 212 (c) relief. These include certain drug offenses or crimes involving moral turpitude. The leading case on this matter is Matter of Blake.
2. Marriage to a U.S. Citizen:
Another avenue for relief may be marriage to a US citizen. If the alien has entered the United States legally and the alien’s only fault has been overstaying or minor criminal offenses, then a genuine marriage to a US citizen may provide the court with the basis to allow the alien to obtain a green card (a process called “adjustment of status”).
3. LIFE Act:
Another way to adjust status is by proving the existence of a validly filed application which was filed prior to April 30, 2001. Under the “LIFE Act”, an alien who had an application filed on his or her behalf prior to April 30, 2001 may be eligible to claim that application to “grandfather”in a future application for adjustment. Such an application would have had to be filed by either an employer prior to April 30, 2001 or by a US citizen or legal permanent resident spouse, parent or adult son or daughter. Please note-adult sons or daughters can only file for their parent if the son or daughter is a US citizen. Sons and daughters who are legal permanent residents cannot file for their parents.
In any event, what this all means is that an alien who had a valid application filed on or before April 30, 2001 could subsequently use that application as proof to support a new application for adjustment of status that may be filed before the immigration court. However, please note that asylum applications do not count as a validly filed application for purposes of the LIFE Act adjustment. Only family based or employment based applications will count provided of course the application was filed on or before April 30, 2001. For example, many thousands of “Labor Certification” cases were filed on or before April 30, 2001 in order to give the beneficiary alien the chance to adjust status based on the LIFE Act. Aliens taking advantage of the LIFE Act will have to also file a supplementary adjustment of status application and pay a penalty of $1000.00 per applicant.
4. Waivers for criminal offenses:
Under INA § 212 (h), a waiver may also be available for an alien whose removal would cause extreme and exceptional hardship to a US citizen spouse, parent or child provided that the alien has been in the United States for a minimum of seven years prior to service of the Notice to Appear. The § 212 (i) waiver is also available in cases of fraud or misrepresentation as grounds for removal.
5. Cancellation of removal for permanent residents:
Legal permanent residents who have been in the United States for at least seven years prior to the service of the Notice to Appear and have not committed an aggravated felony are eligible for cancellation of removal for permanent residence. A removable offense must not have been committed prior to the applicant completing seven years in permanent resident status. Cancellation of removal is filed with the immigration court and the hearing will be held at which time the equities of the alien’s application for cancellation of removal will be considered. The court will evaluate the application for cancellation based on the one hand the seriousness of the offense and on the other the alien’s equities such as family ties in the USA, good moral character, employment, payment of taxes, support from family members and friends from the community, etc. Some of the factors that the court may consider were set forth in the Board of Immigration Appeals case “Matter of Marin”.
6. Cancellation of removal for non-permanent residents:
In many cases, an alien may be unlawfully present in the United States for many years prior to being apprehended for one reason or another by the USICE. Such aliens may be eligible for cancellation of removal for “non-permanent residence” if they meet the following criteria:
Must prove unlawful presence in the United States for a minimum of ten years prior to the service of the Notice to Appear.
Must not have committed any aggravated felonies; and
Must show exceptional and extremely unusual hardship to a US citizen spouse, parent or child.
The third prong is typically the hardest to meet for long-term non-permanent residents. The courts have held in numerous cases that a mere removal from the United States and breaking up of a family is not “exceptional and extremely unusual hardship”. Therefore, claiming such a hardship waiver requires a significant investment in time and resources in developing a strong argument for why the alien merits such a waiver.
7. Asylum/withholding of removal and withholding of removal under the United Nations’ Convention Against Torture (CAT):
An asylum application can be filed with the immigration court even if the asylum application has previously been filed with the asylum office and has been denied. Asylum refers to the process whereby an alien can claim refugee status in the United States because an alien has a record of past persecution or a “well founded fear of future persecution” on the basis of the alien’s race, religion, nationality, membership in a particular social group, or political opinion. Withholding of removal hinges on the same issues except that the alien’s burden of proof is much higher. The alien must show that more likely than not (ie, 50% plus), the alien will be persecuted if returned to his or her home country. Finally, with regard with the “United Nations’ Convention Against Torture”, the alien must show that there is a strong possibility that he or she will be subject to torture if returned to his or her home country. Absent strong evidence, asylum cases are hard to prove and hard to win. Aliens who assert such claims must try to develop them as much as possible with as much documentation as available including letters from their home country, expert opinions, and other supporting documentation about the general condition in their home countries.
This concludes the examination of the major forms of relief from removal. Please note that this is not an exposition by any means of each and every avenue of relief, only a broad brush
of some of the more familiar and more frequently employed applications for relief. Once again, for specific assistance regarding your particular case, please consult a qualified immigration attorney.
Appeal to the BIA followed by Federal Appeals:
If the Immigration Court denies your application, then you must appeal to the BIA (Board of Immigration Appeals) within 30 days of the immigration judges’ decision.
Appeal to the Federal courts:
If the BIA agrees with the Immigration Court, you can appeal in some cases to the United States Court of Appeals for the Federal Circuit which has jurisdiction over the case. Again, any appeal must be filed with the Circuit Court within 30 days of the BIA decision. The ICE can detain an alien during the appeal period. However, the USICE cannot deport an alien if the alien has applied for and the Circuit Court has granted a stay of removal while the appeal is still pending before the Circuit Court.
What if the alien detained by the USICE?
In certain cases, the detained alien may apply for and be granted release under the centuries-old doctrine of habeas corpus. However, the right to habeas relief was curtailed somewhat by the REAL ID act of 2005. Typically, the US government will argue that a federal district court court has no jurisdiction to hear a habeas claim. The US Supreme Court held in the case of Zadvydas v. Davis that detainees had a right to meaningful custody review after 180 days (six months) in custody if it did not appear that removal was “reasonably foreseeable”.
Immigration removal defense is a very difficult area. Especially since the enactment of IIRIRA and subsequent immigration law, the window through which a relief application can be filed has become smaller and smaller. This has made it very difficult for aliens to seek adjustment of status or cancellation of removal. Likewise, it has also posed significant logistical difficulties both to the immigration court, the Board of Immigration Appeals, and the Federal Appeals court, because more and more immigration cases are being appealed due to the unavailability of relief either through the immigration court or the Board of Immigration Appeals. Therefore, my only advise to you as the reader is to seek qualified legal immigration advice in order to prepare and present the best defense or defenses as possible in your case. Please note that you are not limited to just one defense. You may be able to raise multiple defenses, thereby enabling you to qualify for relief from removal through at least one of these avenues.
I do hope that this series of three articles has been useful to you. If you have questions or comments regarding these articles, please feel free to e-mail me at email@example.com.