Immigration – Different Forms of Discretionary Relief From Removal

The following are summaries of different types of Immigration relief from removal that are discretionary, and is not intended to serve as the substitute from seeking the advice of a competent immigration lawyer, such as the attorneys at Hilf & Hilf, PLC.

If during Immigration proceedings an alien is found to be removable, he or she can request different forms of discretionary relief.  The alien has the burden of proving that he or she is eligible to receive the requested form of relief under United States law, and that a hearing officer or Immigration Judge should exercise his or her discretion to grant the requested relief.
Voluntary Departure – Voluntary departure is different from simply leaving the United States.  One way of receiving voluntary departure is to make an agreement with Immigration and Customs Enforcement (ICE) prior to removal proceedings.  A second option for voluntary departure involves going to the Court and requesting voluntary departure.  The Court request can be made at anytime during the deportation proceedings.  If the Court grants the relief, the alien is asked: to confirm that this is what he or she wants to do; if the alien has any arrests and criminal convictions;whether previously the alien has been removed before or voluntarily departed before; whether or not the alien has a passport; whether or not the alien has the financial ability to pay for transportation from the United States; the date that the departure will occur (it has to be within 120 days).  Voluntary departure will not be granted to person that are deportable as an aggravated felon or as a terrorist.
If voluntary departure is requested after the immigration hearing, the alien has other requirements to meet.  The alien must have been present in the United States for at least 1 year prior to the start of removal proceedings, and can show good moral character for at least 5 years prior to the application.  If granted after the hearing,  the alien is only given a maximum of 60 days to depart the United States.
The benefits of voluntary departure  are that, unlike a removal order, there is not a 10 year bar from returning.  It allows the alien to leave on their own, and provides some time to take care of personal and business affairs before leaving.  The alien is also not subject to reinstatement of removal if there is a later unlawful reentry into the United States.
If the alien does not depart the United States as ordered pursuant to the voluntary departure, there are severe consequences.  The penalties include large civil fines, incarceration, and making the alien ineligible to seek other forms of immigration relief for 10 years.
Cancellation of Removal – Cancellation of removal is another form of discretionary relief that is available to both lawful permanent residents and non permanent aliens.  The rules are different for each.
For lawful permanent residents, cancellation of removal may be granted if they:
(1) have been a lawful permanent resident for at least 5 years;
(2) have continuously resided in the United States for at least 7 years after lawful admission;
(3) AND has not been convicted of an aggravated felony offense.
Cancellation of removal for non permanent aliens may be granted if the alien:
(1) has been continuously present in the United States for at least 10 years;
(2) has possessed good moral character while in the United States;
(3) has not been convicted of any offense or offenses that would make the alien removable;
(4) AND demonstrates that removal would result in an exceptional and extremely unusual hardship to his or her spouse, parent(s), or child(ren) that are either United States citizens or lawful permanent residents.
For victims of domestic violence, different standards are employed.
Asylum – A person with a well founded fear of persecution if he or she returns to their country of origin may apply for Asylum before the USCIS.  Also, a person who is in removal proceedings may apply before an Immigration Judge for: Asylum, Withholding of Removal (must prove by a more likely than not standard); OR seek protection under the Convention Against Torture (must prove that you might be tortured if returned to your home country).
In order to apply for Asylum, the applicant must demonstrate that they will be persecuted if they return to their country of origin based upon their (1) political opinions, (2) religious beliefs, (3) nationality, (4) race, OR (5) membership in a particular social group.  Being a member of a particular social group means possessing a personal characteristic that is unchangeable, such as being: female; homosexual; having a birth defect, etc, and not something transitory and changeable such as a hairstyle, clothing preference, etc.
The persecutor has to be either the actual government of the country, OR a group that is active within the applicant’s home country that the government either cannot or will not control.  Examples of this may be hardline religious groups seeking to impose certain beliefs, drug dealers that operate violently without police intervention, etc..
Generally an applicant is not disqualified by passing through other countries on the way to the United States.  If the applicant became firmly resettled in the country they passed through by being offered citizenship or permanent residency, this could be a basis to deny the Asylum application.
If  the application for Asylum is granted, the applicant is allowed to live and work in the United States.  This includes the spouse and any unmarried children under the age of 21 in the Asylum application if the spouse or children are in the United States.
To be eligible for Asylum, the applicant must either ask for it when entering the country at the port of entry, or file an application within 1 year of arrival to the United States.  Even if the applicant entered the United States illegally, Asylum is potentially available.  There are a few exceptions to the 1 year requirement, such as if the conditions in the country of origin changed, or personal circumstances changed, within 1 year of the Asylum request.  Filing after the 1 year deadline expires is allowed if extraordinary circumstances prevented the applicant from filing within the 1 year period, so long as the application is filed within a reasonable time given those circumstances.
Eligibility for Asylum will be based on information provided in the Asylum application, and during an Asylum interview before an Asylum officer or an Immigration Judge.  If the applicant is already in removal proceedings the issues will be decided by an Immigration Judge.  Otherwise, an Asylum officer will interview the applicant to determine whether they are eligible for Asylum.  The Asylum officer can either grant the application, deny the application, or refer the matter to an Immigration Judge for their decision.  The Immigration Judge will make a decision as to removal if the applicant is determined to be ineligible for Asylum and illegally in the United States.  If the applicant’s status is still valid, and a determination is made by an Asylum officer that the applicant is not eligible for Asylum, the applicant will receive a written notice of that fact, and given an opportunity to respond to that notice before a final decision is made on the application.  If the Asylum application is granted, the applicant and his or her family can apply for permanent residency after 1 year of residing in the United States.
Adjustment of Status – Adjustment of status is a form of discretionary relief to change an alien’s status from a non immigrant to a lawful permanent resident.  Aliens that were previously admitted to the United States apply to the Department of Homeland Security for adjustment of status; aliens in removal proceedings apply before an Immigration Judge.  The alien must be admissible for permanent residence and an immigrant visa must be available for the alien to qualify,  Aliens that qualify for adjustment of status are often petitioned for by their spouse, another family member, or their employer.  This form of relief may not be available to aliens: that have criminal histories; who fail to attend court proceedings; who fail to depart when granted voluntary departure; who were previously ordered removed.
Hiring the right Immigration lawyer may be one of the most important decisions you make for yourself, your family, friends, and your employees.  We have the experience, expertise, and commitment to work as your immigration lawyer. There are no amateur attorneys at Hilf & Hilf, PLC – only professionals that are guided by the humanity in the individuals we serve, and the drive not to settle for what is easy over what is right. We would like to meet with you, and formulate a plan for your success.  Contact us today.