Removal Defensive Actions

Cancellation of removal is a form of immigration relief available to individuals who have been placed in removal proceedings before the United States Executive Office for Immigration Review. It was designed to replace suspension of deportation, a form of relief available prior to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). A different standard for eligibility for cancellation is applied for lawful permanent residents (“LPRs”) and non-LPRs. Recipients of a grant of cancellation are eligible for permanent residency in the United States.

Cancellation of Removal for Lawful Permanent Residents

Lawful permanent residents of the United States may be placed in immigration proceedings due to certain criminal convictions that leave them inadmissible or deportable from the United States. LPRs convicted of aggravated felonies are entirely precluded from cancellation relief.

Pursuant to INA §240A(a), cancellation is available for any LPR who—

  1. Has been an LPR for not less than five years; and
  2. Has resided in the United States for not less than seven years in any status; and
  3. Has not been convicted of an aggravated felony.

Please note the “stop-time” rule at Sec. 240A(d) that stops a lawful permanent resident from accruing the seven years residence once they are served with a Notice to Appear or when they have committed a crime that makes them deportable and/or inadmissible. ““

The application form for LPR-based Cancellation of Removal is the EOIR-42A.
Cancellation of Removal for Non-Permanent Residents

Pursuant to INA §240A(b), cancellation is available to a non-permanent resident of the United States in any immigration status who–

  1. Has continuously resided in the United States for at least ten years; and
  2. Has been a person of good moral character throughout this time; and
  3. Is not otherwise subject to criminal bars arising from a conviction of any crime outlined in INA §212(a)(2), §237(a)(2), or §237(a)(3); and
  4. Establishes that removal would result in “exceptional and extremely unusual hardship” to the alien’s spouse, parent, or child who is a United States citizen or legal permanent resident.

The application form for non-LPR-based Cancellation of Removal is the EOIR-42B

Withholding of Removal

Withholding of removal is a special type of order issued by an immigration judge to a person who demonstrates more than a 50% chance that they will be persecuted in their home country on account of their race, religion, nationality, membership in a particular social group, or political opinion. Like asylum, withholding of removal protects a person from being deported to a country where they fear persecution. Withholding of removal, however, is a limited benefit.

Applications for withholding of removal and relief under the Convention Against Torture (CAT) are made on the same form as asylum applications (Form I-589) and are made simultaneously with the asylum application. However, while either an asylum officer or an immigration judge can grant asylum, only an immigration judge hearing a case for someone in removal proceedings can grant withholding of removal or CAT.

Withholding of removal has distinctly inferior differences when compared to asylum. Withholding of removal does not lead to a green card; the employment authorization document (EAD) must be renewed annually (along with the I-765 filing fee); it does not allow travel outside the US; and the grantee continues to be subject to future removal to another country; and can be subject to continued detention if already detained (or, if detained, withholding does not obtain release from detention).

The advantage of withhold over asylum is that there is no one-year filing deadline for withholding applications, and approval is not discretionary. Thus, if an applicant proves eligibility for withholding (based on evidence showing torture is more likely than not), a judge must grant that application. Further, there are some crimes which may disqualify an applicant for asylum, but which do not disqualify for withholding of removal.

CAT as an alternative to Withholding or Asylum

Almost all people who qualify only for CAT are subject to mandatory detention while in removal proceedings—which means the Respondent does not qualify to be released from immigration detention on parole or after paying a bond. In some cases, if the grantee is considered a danger to the community, ICE will continue detention after CAT has been granted.

Staying Removal After a Deportation Order

If you have a good reason, you might be able to convince the government to postpone your departure date.

A stay of removal is a temporary postponement, which prevents the Department of Homeland Security (DHS) from carrying out an order of removal. There are several forms of relief from removal that an alien may attempt to use during this process. There are several forms of relief from removal that an alien may attempt to use during this process. In some cases, a stay of removal may be automatic, while in others, it may be discretionary.

Stay of Removal application Form I-246

See also Prosecutorial Discretion by ICE

Administrative Stays of Removal—ICE

An administrative stay of removal is filed with the ERO office having jurisdiction where the alien resides at the time of filing. The administrative stay is granted in the ERO officer’s exercise of discretion. So, the basis must be persuasive and well documented. It must show that the non-citizen’s (and family members) equities, hardship, and ties to this country merit a stay of removal. Any and all negative issues (including immigration and criminal violations) must be disclosed. How that is disclosed may not make, but could certainly break, an application. Additionally, the possibility of future relief under the Immigration and Nationality Act is relevant in establishing that removal from this country should be stayed. A non-citizen with a pending motion to reopen a prior removal order may successfully convince ERO to administratively stay his removal until a decision is entered by a court. An alien with an approved family petition whose priority date is not yet current may also warrant this discretionary relief pending eligibility to adjust. All relevant factors specific to the applicant’s case are considered by the officer during the adjudication of the stay. The absence of information that should have been included will also be considered by the officer.

Automatic Stays of Removal—BIA

An automatic stay of removal will only go into effect if an appeal is filed properly within the time frame specified by the immigration laws. Appeals of an immigration judge’s decision are made to the Board of Immigration Appeals (BIA). The BIA is the highest administrative body which interprets and applies the immigration laws. The BIA typically does not conduct courtroom proceedings. Instead, they do a “paper review” for most cases. If an automatic stay of removal is granted, it will expire when the BIA gives a final decision on a given case.

– See more at: http://immigration.findlaw.com/deportation-removal/delaying-deportation-removal-stay-proceedings.html#sthash.FYos1H6l.dpuf

Discretionary Stays of Removal—BIA

The BIA is allowed to grant stays at its discretion for matters that are within the board’s jurisdiction and authority. The BIA will only consider granting a discretionary stay of removal when an appeal, a motion to reopen, or a motion to reconsider is pending before the board.

The Process for Requesting a Stay of Removal

A request for a discretionary stay of removal should generally be made in the form of a written motion. If the circumstances are urgent and immediate attention is needed, the BIA may at its discretion allow an oral stay request to be made by telephone.

It is important to note that a motion to request a discretionary stay of removal does not by itself postpone execution of an order. The BIA must grant the motion request for the stay to go into effect and for the previous removal order to be suspended. A discretionary stay of removal is issued in a written order. The discretionary stay of removal expires when the BIA announces a final decision on a case.

– See more at: http://immigration.findlaw.com/deportation-removal/delaying-deportation-removal-stay-proceedings.html#sthash.FYos1H6l.dpuf

Deferred Enforced Departure

As part of the President’s power with foreign relations, he can use a process known as Deferred Enforced Departure (DED). Aliens covered by DED are not subject to removal from the United States for a designated period of time. The DED is not a specific immigration status, but rather is used at the President’s discretion. Currently, only certain countries are eligible to benefit from this process. Those who are eligible may benefit by the ability to continue working in the United States, an extension of an Employment Authorization Document, and even travel outside of the United States.

– See more at: http://immigration.findlaw.com/deportation-removal/delaying-deportation-removal-stay-proceedings.html#sthash.FYos1H6l.dpuf

Currently, only Liberia is covered under DED. (as of 20160202)

Bond Posting and Return

If you are facing or have faced removal proceedings, learn about bond posting and return by visiting the following information pages: