Return to Immigration Law

Waivers

The immigration law lists various grounds by which a person in removal proceedings may apply for a waiver. All waivers require proof of “hardship” or “extreme hardship” or “extreme and extraordinary hardship” to close family members that are US citizens or lawful permanent residents, if the alien were to be removed from the US.

For example, a person who has committed fraud or a material misrepresentation to obtain an immigration benefit or a benefit from a governmental agency (ie., motor vehicles) may apply for a waiver under INA Section 212(i) if his/her removal (deportation) from the US would result in “extreme hardship” to his lawful permanent resident or US citizen spouse or parents.

There are various waivers for criminal convictions, prior deportations, unlawful presence, 2- year foreign residency requirement for J visas, and health grounds. Cancellation of Removal for Permanent Residents. An order from an Immigration Judge granting Cancellation of Removal has the effect of pardoning for immigration purposes the crime that formed the basis for the alien’s deportability. An alien may only receive one grant of cancellation of removal in his/her lifetime. This order granting cancellation of removal allows the person to keep his/her lawful permanent residence. An order denying this relief is an order of removal (deportation) from the U.S.

To qualify for this relief, the person:

1. Must have been a lawful permanent resident for a minimum of five years
2. Resided continuously in the US for a minimum of seven years after being admitted to the US in any status the exceptions are listed below) prior to the institution of removal proceedings (service of notice to appear)
3. Must not have been convicted of an aggravated felony; and is not inadmissible from the US on security grounds.
   

The following persons may not apply for cancellation of removal: certain crewmen; exchange visitors (J visa) who received medical training in the US; persons who have persecuted others; person who have previously been granted cancellation of removal, suspension of deportation or relief under Section 212(c); and persons who committed certain criminal offenses prior to the accrual of the required seven years.

An Immigration Judge will balance certain positive factors and negative factors in determining whether an alien should be permitted to remain in the US. Some positive factors include: close family ties within the US, health of family members, history of employment, community service, service in US armed forces, length of residency in the US, ownership of property and business, assets in the US, payment of taxes, rehabilitation, remorse, hardship to family members. The negative factors include: failure to pay taxes, misrepresentation in court, the nature and circumstances of the removal ground, criminal record and other evidence of bad character. The positive factors must outweigh the negative factors for there to be a favorable decision by the Immigration Judge.

Cancellation of Removal for Non-Permanent Residents

This law allows the Attorney General (usually an Immigration Judge) or the Board of Immigration Appeals) to cancel the removal of a non-permanent resident from the US if:

1. He has been physically present in the US for a continuous period of ten years prior to the institution of removal proceedings. (This requirement is not applicable to persons who have served a minimum of 24 months in the US Armed Forces, was present in the US during his enlistment or induction, and is either serving honorably or has received an honorable discharge.)
2. Continuous means that the person cannot be out of the US for more than 90 days at a time or 180 days in the aggregate, during the ten- year period.
3. He has been a person of good moral character for ten years.
4. He cannot be inadmissible under INA Section 212(a)(2) or (3) (failure to register and falsification of documents) or (4) security grounds).
5. He established exceptional and extremely unusual hardship to a qualifying US citizen or lawful permanent resident spouse, parent or child (Note, not hardship to the applicant).

Cancellation of Removal for Battered Spouses

If a battered spouse is put into deportation or removal proceedings, he/she must demonstrate three years of continuous physical presence in the US instead of ten years for cancellation of removal. Time toward the three-year period would accrue even after he/she received the notice to appear for the removal hearing. This is different than the one that applies to other individuals where physical presence in the US terminates upon service of notice or commission of a criminal act.

The applicant for cancellation must demonstrate good moral character and must not be inadmissible under certain INA sections.

1. INA section 212(a)
2. Criminal and related grounds; (2) INA section 212(a)(3)-security and related grounds; (3) INA section 237(a)(1)(G)- marriage fraud; (4) INA section 237(a)(2)- criminal offenses; (5) INA 237(a)(3) document fraud; and (6) INA section 237(a)(4)- security and related grounds. The applicant must not have been convicted of an aggravated felony.

The applicant must also demonstrate that removal would result in extreme hardship.

This is a different standard of “hardship” than the other cancellations of removal. While the battered spouse or child has to demonstrate “extreme hardship”; others need to show “extreme and unusual hardship” to a citizen or resident relative, extreme hardship alone to the battered applicant would be enough.

Suspension of Deportation

Persons who were placed in deportation proceedings prior to April 1, 1997 as well as NACARA applicants may still be eligible for suspension of deportation. The suspension of deportation is more generous than Cancellation of Removal.

A deportable alien may apply for permanent residence through suspension of deportation if he is able to meet the following three (3) conditions:

1. He/she must have been continuously physically present in the US for at least seven years. Absences, which are “brief, casual and innocent,” do not interrupt the continuity of the alien’s physical presence.
2. He/she must be a person of good moral character.
3. It must be proven that deportation would cause “extreme hardship” to the alien, or his spouse, children, or parents, who are US citizens or lawful permanent residents of the US.
   

Adjustment of Status

A deportable alien or one subject to removal who is the parent, spouse, widow or child of a US citizen may be eligible to apply to the Judge to adjust his/her status to that of a lawful permanent resident. Aliens whose priority dates for permanent residence are “current” are also qualified to apply for adjustment of status. Aliens who obtained conditional permanent residence based upon their marriage, or the marriage of their alien parent, to a US citizen who are unable to have their status adjust from conditional resident to that of permanent resident may, once being put under removal (deportation) proceedings, have their application renewed before an Immigration Judge.

Political Asylum, Withholding of Removal, Withholding of Removal under Article Three of the Convention Against Torture

Individuals who have a well-founded fear of persecution if they return to their home country may apply for asylum if their fear is based on any of the following grounds: (1) political opinion; (2) religious belief; (3) nationality; (4) race; or (5) membership in a particular social group and they are unable or unwilling to return to their country of nationality or to the country in which he/she last habitually resided because of persecution or his/her well founded fear of persecution. If a person is granted asylum, they are able to get work authorization and can, after one year, apply for permanent residence.

Withholding of removal is similar to asylum. But, it differs in 2 ways: (1) it does not permit the alien to apply for permanent residence, and (2) it only prohibits the Department of Homeland Security (formerly INS) from deporting the alien to one particular country.

Withholding of Removal under Article Three of the Convention against Torture states:

• Article 3(1) - “No state Party shall expel, return or expedite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.” In making this determination, the US “shall take into account all relevant considerations including, where applicable, the existence in the state concerned of a consistent pattern of gross, flagrant, or mass violations of human rights.”
• Article 3(2) - “It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.”
  

Legalization and Registry

Once an illegal alien has been found qualified for legalization or amnesty by Department of Homeland Security (INS), the deportation hearing will typically be closed since the alien will have been given or is eligible to receive the legal right to remain in the United States. Those who have filed for LULAC or Meese (late filing amnesty cases allowed under a class action lawsuit settlement) may have their cases terminated.

1. To have been eligible for amnesty, the alien must have:
   Entered the US before January 1, 1982, or in the US illegally since that date
2. Resided continuously in US in unlawful status since such date and through the date of the application
3. Continuously physically present since the date of enactment (Nov. 6, 1986) and is otherwise eligible.
   

Registry is another means of attaining lawful permanent residence in the US. It is available to aliens who have resided continuously in the US since prior to January 1, 1972, who are persons of good moral character, who are not deportable on certain grounds, and who are not ineligible to become US citizens. One is still eligible to apply for registry.

Citizenship

Anyone that has a lawful claim to US citizenship may have their court case terminated.

Voluntary Departure

A person may pay their own ticket and leave the US within a time period designated by an Immigration Judge if they have not been convicted of a crime and has or can obtain a travel document. If the request for voluntary departure is made to the Immigration Judge before and Individual Hearing, the Immigration Judge has discretion to order voluntary departure up to 120 days. After the Individual Hearing, if the person can show that he will pay his own ticket, has or can obtain a travel document and has been in the US for at least one-year, has no prior grant of voluntary departure, the Immigration Judge may only grant up to 60 days of voluntary departure and the alien must post a Bond that is set by the Judge. The minimum bond is $500.00. This Bond must be paid within 5 days of the order.

Failure to pay the bond or to leave the US by the date designated by the Judge converts the Order of the Judge to a Removal Order and the individual is barred from any relief and reopening of the case for a period of ten-years. The individual is also subject to a civil penalty of $1,000.00 to $5,000.00.

Contact Us to discuss your legal matter today.