Welcome to our comprehensive guide on relief from deportation. In this guide, we will provide you with essential information and resources to understand the various types of relief available to individuals facing deportation proceedings. As experienced immigration and criminal defense attorneys in New York and New Jersey, we have helped numerous clients navigate the complex world of immigration law and obtain relief from deportation.
Understanding Relief from Deportation
Deportation, also known as removal, is the legal process of expelling individuals from the United States due to violations of immigration law. However, there are several forms of relief that individuals facing deportation can pursue to avoid removal or obtain lawful status. These forms of relief include:
- Cancellation of Removal: Cancellation of removal is available for both lawful permanent residents and non-lawful permanent residents who have been physically present in the U.S. for a specific period of time and can demonstrate exceptional and extremely unusual hardship to a qualifying relative if they were to be deported.
- Asylum: Asylum is a form of relief available to individuals who have suffered persecution or have a well-founded fear of future persecution in their home country based on their race, religion, nationality, political opinion, or membership in a particular social group.
- Withholding of Removal: Withholding of removal prohibits the U.S. government from removing individuals to a country where their life or freedom would be threatened. The burden of proof for withholding of removal is higher than that of asylum, requiring individuals to demonstrate a clear probability of persecution.
- Convention Against Torture: The Convention Against Torture (CAT) prevents individuals from being returned to a country where they are more likely than not to be tortured. Unlike asylum and withholding of removal, CAT relief does not require individuals to establish a specific protected ground.
- Adjustment of Status: Adjustment of status allows individuals who are physically present in the United States to become lawful permanent residents without having to leave the country. This relief is typically available to individuals who are eligible for an immigrant visa and are sponsored by a U.S. citizen or lawful permanent resident relative or employer.
- Prosecutorial Discretion: Prosecutorial discretion allows immigration authorities to exercise discretion in pursuing or terminating removal proceedings. This form of relief can involve deferred action, prosecutorial discretion memos, or other discretionary measures taken by immigration authorities.
To provide a clearer understanding, let’s explore these various forms of relief in greater detail.
Cancellation of Removal
Cancellation of removal is a form of relief from deportation available to both lawful permanent residents (LPRs) and non-lawful permanent residents (non-LPRs) who meet specific criteria. It can be a lifeline for individuals facing deportation, particularly when they can demonstrate exceptional and extremely unusual hardship to a qualifying relative if they were to be deported. The eligibility requirements for cancellation of removal differ for LPRs and non-LPRs.
Cancellation of Removal for Lawful Permanent Residents
LPRs, commonly known as green card holders, may be eligible for cancellation of removal if they meet the following requirements:
- Must have been an LPR for at least five years
- Must have continuously resided in the U.S. for at least seven years after being admitted in any status
- Must not have been convicted of an aggravated felony
In addition to these requirements, LPRs must also present evidence of good moral character and must establish that their removal would result in exceptional and extremely unusual hardship to a spouse, parent, or child who is a U.S. citizen or LPR.
Cancellation of Removal for Non-Lawful Permanent Residents
Non-LPRs, also known as undocumented immigrants, may also qualify for cancellation of removal if they meet the following requirements:
- Must have continuously resided in the U.S. for at least ten years
- Must have exhibited good moral character during this period
- Must not have been convicted of certain crimes
Non-LPRs must also establish that their removal would result in exceptional and extremely unusual hardship to a spouse, parent, or child who is a U.S. citizen or LPR.
Asylum is a form of relief available to individuals who have suffered persecution or have a well-founded fear of future persecution in their home country based on certain protected grounds. The protected grounds include race, religion, nationality, political opinion, and membership in a particular social group.
To be eligible for asylum, individuals must meet the following requirements:
- Must file an application for asylum within one year of arriving in the United States, unless they can establish changed circumstances or extraordinary circumstances
- Must demonstrate a well-founded fear of persecution on account of a protected ground
- Must establish that the government in their home country is unable or unwilling to protect them from persecution
If granted asylum, individuals may apply for permanent residency one year after being granted asylum.
Withholding of Removal
Withholding of removal is similar to asylum, but the burden of proof is higher. To qualify for withholding of removal, individuals must demonstrate a clear probability of persecution in their home country based on a protected ground. Unlike asylum, withholding of removal does not provide a pathway to permanent residency or the ability to apply for a green card.
Convention Against Torture
The Convention Against Torture (CAT) is another form of relief from deportation. To qualify for CAT relief, individuals must establish that it is more likely than not that they would be tortured if they were to be removed to their home country. CAT relief is not dependent on any protected ground but requires evidence of a significant risk of torture.
Adjustment of Status
Adjustment of status allows individuals to become lawful permanent residents without having to leave the United States. To be eligible for adjustment of status, individuals must have an approved immigrant petition, be physically present in the United States, and have a visa number immediately available.
There are several ways to qualify for adjustment of status, including through family-based sponsorship, employment sponsorship, or humanitarian programs. Each category has specific eligibility requirements and application processes.
Now, let’s summarize the information we covered in a comparative table:
|Relief from Deportation||Eligibility Criteria||Available Pathways|
|Cancellation of Removal||– LPR for at least 5 years|
– Continuous U.S. residence for 7 years
|– Exceptional and extremely unusual hardship to a relative|
|after admission||– No conviction of an aggravated felony|
– Continuous U.S. residence for 10 years
|– Good moral character|
|– No conviction of certain crimes|
|Asylum||– Filing within one year of arrival in the U.S.||– Path to permanent residency|
|– Well-founded fear of persecution based on protected ground|
|– Government inability or unwillingness to protect|
|Withholding of Removal||– Clear probability of persecution based on protected ground||– No pathway to permanent residency|
|Convention Against Torture||– More likely than not to be tortured if removed to home country|
|Adjustment of Status||– Eligible for an approved immigrant petition||– Permanent residency without leaving the U.S.|
|– Physically present in the U.S.|
|– Visa number immediately available|
For a practical illustration, let’s consider a hypothetical case:
Case Study: Maria’s Pursuit of Cancellation of Removal
Maria is a lawful permanent resident who has been in the United States for the past 15 years. She recently became the primary caregiver for her elderly U.S. citizen mother, who suffers from a severe medical condition and relies on Maria’s assistance for daily activities. Unfortunately, Maria was convicted of a non-aggravated felony last year, which puts her at risk of deportation.
With the help of a skilled immigration attorney, Maria applies for cancellation of removal, arguing that her removal would result in exceptional and extremely unusual hardship to her mother. Her attorney gathers medical records, testimonies from healthcare professionals, and evidence of Maria’s continuous presence and good moral character throughout her time in the United States.
The immigration judge grants Maria’s application for cancellation of removal, recognizing the compelling hardship presented by Maria’s case. Maria is relieved to secure her lawful permanent resident status and continues to care for her mother.
Frequently Asked Questions (FAQs)
- What is relief from deportation?
Relief from deportation refers to various forms of legal protection that individuals facing removal proceedings can pursue to avoid deportation or obtain lawful status in the United States.
- Who is eligible for cancellation of removal?
Both lawful permanent residents and non-lawful permanent residents may be eligible for cancellation of removal if they meet specific criteria, such as the length of residency and establishment of exceptional and extremely unusual hardship.
- What are the protected grounds for asylum?
The protected grounds for asylum include race, religion, nationality, political opinion, and membership in a particular social group.
- Can individuals who are granted asylum apply for permanent residency?
Yes, individuals granted asylum may apply for permanent residency one year after being granted asylum.
- What is the difference between withholding of removal and Convention Against Torture relief?
While both forms of relief prohibit removal to a country where an individual’s life or freedom would be threatened, withholding of removal requires a clear probability of persecution, while CAT relief only requires evidence of a significant risk of torture.
- Is adjustment of status available to undocumented immigrants?
Adjustment of status is generally not available to undocumented immigrants. It is typically reserved for individuals who have an approved immigrant petition and a visa number immediately available.
- How long do I have to file an asylum application?
In most cases, individuals must file an asylum application within one year of their arrival in the United States, unless they can establish changed circumstances or extraordinary circumstances.
- What happens if my asylum application is denied?
If your asylum application is denied, you may be referred to an immigration court for removal proceedings. It is crucial to seek legal representation to explore alternative forms of relief.
- What is prosecutorial discretion?
Prosecutorial discretion allows immigration authorities to exercise discretion in pursuing or terminating removal proceedings. This can involve deferred action, prosecutorial discretion memos, or other discretionary measures taken by immigration authorities.
- Do I need an attorney for relief from deportation?
While it is possible to pursue relief from deportation without an attorney, having an experienced immigration attorney by your side can significantly increase your chances of success and ensure that your rights are fully protected.
We hope this guide has provided you with valuable insights into relief from deportation. For personalized assistance and guidance in your specific case, we encourage you to visit Criminal Immigration Lawyer for expert legal representation.
Remember, navigating the complexities of immigration law can be challenging, but with the right knowledge and expert guidance, you can overcome obstacles and secure a better future.
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