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Types of Relief From Removal Proceedings: An Overview

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September 28, 2022

Key Takeaways

When the U.S. government wants you out of the country, they’ll try to deport you with a removal proceeding. If you find yourself in this situation, you have several forms of relief available, including voluntary departure, adjustment of status, cancellation of removal, asylum, and more. Many of these options can delay or stop your deportation, although they’re not always easy to get or applicable to every situation. After reading this article, you will have a general idea of some of the more common forms of relief available and how they work.

Table of Contents

What Is a Removal Proceeding?

A removal proceeding is when the U.S. government begins a legal process to remove or deport a nonimmigrant from the United States. It’s also called a deportation proceeding. This process could happen to any noncitizen under the Immigration and Nationality Act (INA). In rare cases, naturalized U.S. citizens who used fraudulent means to get citizenship could face immigration court proceedings as well.

In all of these cases, the U.S. government is challenging your immigration status, and you must appear before an immigration judge. The Executive Office for Immigration Review (EOIR) oversees the removal process.

How Do Removal Proceedings Work?

Usually, the process begins when U.S. Immigration and Customs Enforcement (ICE) detains someone or issues a Notice to Appear (NTA). This document will state that the person is deportable and explain the reason(s) why. The NTA may provide the initial hearing date and location, or you may receive a separate document with the logistical information.

The judge will quickly review your case at your first hearing, which is called the master calendar hearing (MCH). The MCH will usually only last 15 minutes. Afterward, they will schedule your individual hearing, where the court will review your case more closely. Here, you can make your case for why the government should not remove you from the United States. You and the ICE attorney will present documents and provide testimony.

It is essential to attend your hearings. Otherwise, the judge may order you removed “in absentia,” a decision made while you were not present.

The EOIR manages these immigration courts. If the judge decides to issue an order of removal, you can still appeal it to the next court, the Board of Immigration Appeals (BIA). The government can also appeal the judge’s decision. You can also appeal to a federal court of appeal and the Supreme Court. However, federal courts have more restricted judicial review of removal orders, given previous court precedents and laws. This limited judicial review means they cannot take up every immigration case.

What Does Relief From Removal Mean?

The U.S. government can declare that you are deportable and plan to remove you from the United States. However, you can still pursue legal options to avoid deportation. These options are called relief from removal. Relief from removal may allow you to delay your removal or prove you shouldn’t have faced deportation in the first place. You may also be able to provide reasons why ICE shouldn’t remove you.

How Do I Stop Removal Proceedings?

Below are some of the most common forms of relief. However, this is not an exhaustive list of options. Some of these options may stop a removal proceeding altogether. Others delay it or allow you to pursue a third possibility.

Voluntary Departure

With voluntary departure, you can choose on your own to return to your home country. If you choose this option, the order of deportation will not appear on your record. It is often easier to receive this at the beginning of your process than at the end.

You can request this option from ICE or the immigration judge. ICE or the judge could reject you from this option, which means voluntary departure is a form of discretionary relief. Discretionary relief means the judge has the discretion or ability to deny this form of relief. You may be ineligible if you have convictions for certain crimes.

Voluntary departure has its pros and cons. If you are involuntarily deported, the U.S. government often bars you from returning to the United States for five or 10 years. By contrast, if you choose to depart voluntarily, you can avoid this period of inadmissibility. However, suppose you’ve already been in the U.S. unlawfully for one year or more. In that case, you are already subject to a separate ground of inadmissibility that bans you from returning for 10 years.

Another advantage of voluntary departure is that there is no criminal penalty for unlawful reentry after voluntary departure. However, there are penalties for illegal reentry after deportation.

The most significant disadvantage of voluntary departure is that you agree to leave the United States. You also waive your right to appeal your removal proceedings. You will need to pay your own expenses, including a bond, to guarantee you will leave by the required date.

Cancellation of Removal

Under immigration law, cancellation of removal allows certain people who have lived in the United States for an extended period to remain. This process also eliminates your removal order, so ICE will not deport you from the United States. However, the processes and eligibility requirements to have your removal canceled depend on your immigration status.

Cancellation of Removal for Permanent Residents

You may be eligible for this if you:

  • Have been a lawful permanent resident (LPR) for at least five years
  • Have resided in the United States continuously for at least seven years after being lawfully admitted
  • Do not have any criminal convictions for aggravated felonies

Like voluntary departure, cancellation of removal for permanent residents is discretionary. You need to prove you meet the requirements and deserve this option. The judge has the choice not to grant this form of relief.

Cancellation of Removal for Nonpermanent Residents

This form of relief can be quite challenging to get.

You may be eligible if you:

  • Have at least 10 years of continuous physical presence in the United States
  • Have had a good moral character during that period
  • Do not have convictions of certain removable offenses
  • Can prove that your removal would cause exceptional and unusual hardship to a spouse, parent, or child who is a U.S. citizen or LPR

According to the BIA, unusual hardship could be due to the qualifying family member’s age, health, and circumstances. For example, your aging parent may depend solely on you for care. Or you may have a child with serious health issues. If your relative would face a lower standard of living without you, then you generally do not have enough to prove exceptional hardship.

Cancellation of Removal Under the Violence Against Women Act

The Violence Against Women Act (VAWA) gives individuals abused by a spouse or parent who is a U.S. citizen or lawful permanent resident a relief from removal. It also applies to victims of domestic violence who are parents of U.S. citizen children aged 21 years or older.

You will need to meet these requirements to have your removal canceled under VAWA:

  • Continuous physical presence In the United States for at least three years
  • Good moral character
  • No convictions of certain offenses
  • Ability to prove that your removal will result in extreme hardship to you, your child, or your parent

Adjustment of Status

Adjustment of status is the process you use to become an LPR from within the United States. This application differs from consular processing, where you must leave the United States and apply for status in the U.S. from your home country.

You must meet the U.S. Citizenship and Immigration Services (USCIS) requirements for people applying for adjustment of status:

  • You must have an immediate relative who is a U.S. citizen or LPR. If your family member is an LPR, you must have a current priority date in the visa bulletin. In other words, an immigrant visa must be immediately available for you. For relatives of U.S. citizens, this is always immediately available.
  • Officials inspected or paroled you before admitting you into the United States. Exceptions to this lawful entry requirement exist if someone filed a family- or employment-based immigrant petition or labor certifications on your behalf before April 30, 2001.
  • You do not have any criminal convictions for certain inadmissible crimes unless you have a waiver of inadmissibility. In other words, you must be admissible for permanent residence.

Administrative Appeal

The BIA hears appeals of immigration judges’ decisions and some of the Department of Homeland Security (DHS) decisions. You and the DHS can appeal an immigration judge’s decision. However, the BIA must receive your appeal within 30 days from the date of the decision.

The BIA can decide to dismiss or sustain the appeal. They could send the case back to the immigration judge or refer it to the attorney general. The BIA’s decision overrules the DHS or immigration judge.  

Asylum

Asylum is an immigration status for someone who cannot return to their home country because they face or fear facing persecution due to their race, religion, nationality, membership in a particular social group, or political opinion. The government or a group the government cannot — or will not — stop must be the cause of the persecution.

Asylum holders get legal status and work permits. Eventually, they can even apply for asylum green cards. However, you generally must file an asylum application within one year of entering the United States. You also cannot be convicted of certain crimes or threaten national security.

Motion To Reconsider or Reopen

You can move to reopen or reconsider a previous decision with an immigration judge or the BIA. Usually, you can only file one motion to reopen and one motion to reconsider.

A motion to reopen is generally for introducing new and additional evidence or facts that were unavailable during your original hearing. You must file this within 90 days of the final removal order.

A motion to reconsider is for reexamining the decision due to errors of law or fact. You must file this within 30 days of the final removal order.

In both cases, filing a motion does not suspend your removal unless the judge, BIA, or DHS issues a stay of removal.

Stay of Removal

A stay of removal temporarily postpones the DHS from carrying out your removal order. It can be automatic or temporary.

You will receive an automatic stay of removal when you are allowed to file an appeal (unless you waive your right to appeal), while you have an appeal pending with the BIA, or while your case is being certified by the BIA. Filing a motion to reconsider or reopen will not automatically postpone your removal. Filing a petition for review in federal court also doesn’t automatically stay or stop the removal order. Instead, the removal order will proceed unless you apply for and successfully receive a stay of execution.

In these cases, the BIA can issue a temporary stay of removal. It will only consider giving you this if you have an appeal or motion pending before the board.

Conclusion

Applying for relief from removal proceedings can be complicated, but working with a good immigration attorney can make it easier. If you plan to apply for adjustment of status but can't afford the attorney fees and don't want to handle your case alone, we may be able to help. If you are eligible, our free web app will walk you through the process and help you prepare and file your application with the U.S. government. Click "Get Started" to see how we can help make your American dream come true!

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