Facing Removal or Deportation? Consider These Forms of Removal Relief

May 18, 2017 4:56 pm
by David Jakeman

One of the most agonizing experiences an immigrant family may face is the removal or deportation of a family member.  Sadly, at times there is little that can be done to stop this process.  However, sometimes a solution is available that will allow the individual facing deportation to remain in the country, even permanently.  This post will briefly address some of the legal mechanisms currently in place that may provide such relief.  Please refer to other blog posts for more specifics on each topic.  As always, please contact the experienced immigration attorneys at Beacon Immigration for more information about each of these solutions and whether you or a family member qualifies.

Deferred Action
Simply stated, deferred action is a new policy under which the federal government will not deport young, undocumented immigrants.  To qualify, the applicant must meet certain age and residence requirements, be in school or a graduate of school or honorably discharged from the military, and not have a serious criminal record.  This form of relief may be available even if the applicant is already in removal proceedings.

Cancellation of Removal
>Cancellation of removal usually applies when an immigrant has committed some type of crime and has been placed in deportation or removal proceedings.  However, it may still apply even if no crime has been committed. This form of relief comes in two types: one for legal permanent residents (LPR) facing deportation and one for those who are non-permanent residents facing removal.  To be eligible for the first type, the applicant must have been an LPR for at least five years, have resided continuously in the United States for at least seven years, and not have been convicted of any aggravated felony.

The second type is stricter than the first.  This is perhaps because it is available to undocumented immigrants in addition to LPR’s.  It requires continuous physical presence in the United States for at least ten years during which time the applicant demonstrated good moral character.  Also, the applicant must not have been convicted of certain offenses under the immigration code.  Finally, the applicant must prove that removal would result in exceptional and extremely unusual hardship to the applicant’s spouse, parent, or child who is a United States citizen or LPR.

Adjustment of Status
Another form of relief is adjustment of status (AOS).  AOS is a discretionary mechanism by which an eligible applicant can avoid the hardship and expense of traveling to his home country to obtain an immigrant visa from a consular officer.  Essentially, AOS allows the applicant’s status to be adjusted to that of an LPR so long as an immigrant visa is immediately available to him when his application is filed.  This means the applicant must be eligible for permanent residence.  Applicants who were inspected and admitted into the United States can Adjust Status under INA § 245(a).  Those who did not enter legally can only adjust status if they are eligible under INA § 245(i).  In order to qualify for a 245(i) adjustment, the applicant must be (1) the beneficiary of a visa petition that was filed before 01/15/1998 or (2) the beneficiary for a visa petition that was filed by 04/30/2001 and was physically present in the United States on 12/21/2000.