As an immigration and criminal law attorney practicing in New York and New Jersey, I’ve had firsthand experience navigating the complex terrain of immigration law. This article aims to delineate the various humanitarian relief options available to immigrants who are facing the daunting prospect of deportation. Each option is presented with an understanding of the legal intricacies involved.

Understanding Deportation

Before delving into the relief options, it’s important to understand what deportation entails. Deportation, or removal, is the formal process by which a non-citizen is ordered to leave the United States by the government. The grounds for deportation can range from violations of immigration laws, such as overstaying a visa, to committing serious crimes.

Relief Options

1. Asylum

Definition and Eligibility: Asylum is granted to individuals who can demonstrate a well-founded fear of persecution in their home country based on race, religion, nationality, membership in a particular social group, or political opinion. To apply, one must be present in the U.S. or at a port of entry.

Legal Process: The asylum process involves filing Form I-589, Asylum and for Withholding of Removal, within one year of arrival to the U.S. If already in removal proceedings, this application can be made as a defense against deportation.

2. Cancellation of Removal

Eligibility Criteria: This relief is available to certain permanent residents (LPRs) and non-permanent residents.

  • For LPRs: They must have been an LPR for at least five years, resided continuously in the U.S. for seven years after being admitted in any status, and not have been convicted of an aggravated felony.
  • For Non-LPRs: They must have been physically present in the U.S. for a continuous period of ten years, have had good moral character during this period, not been convicted of certain crimes, and prove that deportation would result in exceptional and extremely unusual hardship to their U.S. citizen or LPR spouse, parent, or child.

Legal References: Cancellation of Removal is covered under Section 240A of the Immigration and Nationality Act (INA).

3. Adjustment of Status

Process Overview: Adjustment of Status (AOS) is a procedure allowing certain foreign nationals already in the U.S. to apply for lawful permanent resident status—also known as a Green Card—without having to return to their home country to complete visa processing.

Legal Basis: Under INA Section 245, AOS is a discretionary benefit overseen by the United States Citizenship and Immigration Services (USCIS).

4. Deferred Action and Prosecutorial Discretion

Explanation: Deferred action is a discretionary decision by the Department of Homeland Security (DHS) not to pursue enforcement against an individual for a certain period. This does not provide lawful status but can offer temporary relief from deportation.

Common Examples:

  • DACA (Deferred Action for Childhood Arrivals)
  • Certain cases where non-priority enforcement categorizations are applied based on individual circumstances.

Frequently Invoked Regulations

Throughout these options, certain legal abbreviations recur, such as:

  • INA: Immigration and Nationality Act
  • DHS: Department of Homeland Security
  • USCIS: United States Citizenship and Immigration Services
  • LPR: Lawful Permanent Resident

Hierarchical Structure of Relief Options

It’s imperative to understand that these options follow a hierarchical structure based on one’s immigration status and circumstances:

  1. Asylum – applicable upon arrival or within a year of entry.
  2. Cancellation of Removal – available to those in the U.S. for a significant period, with additional criteria based on LPR status.
  3. Adjustment of Status – for those seeking to become LPRs from within the U.S.
  4. Deferred Action – a form of temporary relief, often used as a last resort.

FAQ – Frequently Asked Questions

Q: What is the difference between asylum and refugee status? A: Asylum is sought by individuals already in the U.S. or at a port of entry, while refugee status is sought by individuals who are outside of the U.S. and unable to return to their home country due to fear of persecution.

Q: Can cancellation of removal lead to a Green Card? A: Yes, if a non-LPR wins a cancellation of removal case, they can obtain LPR status.

Q: Is Deferred Action for Childhood Arrivals (DACA) a permanent solution? A: No, DACA does not provide a path to permanent residency or citizenship; it’s a temporary relief from deportation.

Q: How does one apply for an Adjustment of Status? A: The application for AOS is made on Form I-485, and the applicant must be eligible for a Green Card through family, employment, refugee or asylee status, or other specific provisions.

Q: Does prosecutorial discretion mean that a deportation order will be canceled? A: Not necessarily. Prosecutorial discretion may lead to a temporary stay of deportation, but it does not cancel the order. It simply means the case is not a priority for the agency at that time.

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