Immigration Law: Forms of Relief from Removal
There are several forms of relief that are available to an alien who has been found to be removable (deportable). What follows are summary descriptions of the several forms of relief from removal that might be available to someone who has been placed in removal proceedings. Please be aware that these descriptions are summaries only and any individual who has been placed in removal proceedings should contact James M. Tyler at Schubert, Bellwoar or any other qualified immigration attorney so that his or her rights are protected in Court. Proceedings in Immigration Court, the Board of Immigration Appeals and federal court are complicated and the stakes are very high. An individual in removal proceedings should have legal counsel to assist them at each step in the proceedings.
Once an individual has been placed in removal proceedings and then found to be removable, he or she, if eligible, may request one or more types of discretionary relief. What are the most common forms of relief from removal?
Voluntary Departure – Voluntary departure is the most common form of relief from removal and may be granted by Immigration Judges, as well as the Department of Homeland Security (formerly the INS). Voluntary departure avoids the stigma of formal removal by allowing an individual to depart the United States at his or her personal expense and return to his or her home country, or another country if the individual can secure an entry there. Immigration Judges will provide aliens information on the availability of this form of relief when taking pleadings at the removal hearing in court. It is important to note that aliens granted voluntary departure must depart within the time specified by the Immigration Judge. If the alien fails to depart by that date, the Immigration Judge’s grant of voluntary departure automatically becomes an order of removal and the person will be subject to fines and a 10-year period of ineligibility for other forms of relief.
Although an Immigration Judge has the discretion to set a shorter deadline, aliens granted voluntary departure prior to the completion of removal proceedings must depart within 120 days, and those granted such relief at the conclusion of removal proceedings must depart within 60 days. In addition, in order to avoid being penalized for choosing to appeal a decision rather than depart, the Board of Immigration Appeals will usually extend an earlier grant of voluntary departure for 30 days beyond the date on which it upholds an Immigration Judge’s order of removal.
In some cases, a person is statutorily ineligible for voluntary departure.
Cancellation of Removal – This form of discretionary relief is available to qualifying lawful permanent residents and qualifying non-permanent residents. For lawful permanent residents, cancellation of removal may be granted if the individual:
• Has been a lawful permanent resident for at least 5 years;
• Has continuously resided in the United States for at least 7 years after having been lawfully admitted; and
• Has not been convicted of an “aggravated felony,” a term that is more broadly defined within immigration law than the application of the term “felony” in non-immigration settings.
Cancellation of removal for non-permanent residents may be granted if the alien:
• Has been continuously present for at least 10 years;
• Has been a person of good moral character during that time;
• Has not been convicted of an offense that would make him or her removable; and
• Demonstrates that removal would result in exceptional and extremely unusual hardship to his or her immediate family members (limited to the alien’s spouse, parent, or child) who are either U.S. citizens or lawful permanent residents.
Asylum – Under Section 208(a) of the Immigration and Nationality Act, the Attorney General may, in his discretion, grant asylum to an alien who qualifies as a “refugee.” Generally, this requires that th