Winning your case in Immigration Court requires asking the Court for “relief.” Relief can take several forms but, in essence, you as the non-citizen must show the Court you have a way to remain in the United States. We have listed the usual forms of relief we have sought in the Immigration Courts for our clients.
This list is ordered from least complex to most complex:
1. Cancellation of Removal for Legal Permanent Residents
This form of relief is for those who are already legal permanent residents, but have received a criminal conviction. An Immigration Judge will permit the person to keep his or her green card but he or she must demonstrate the following:
(1) not convicted of an “aggravated felony” as defined by federal law;
(2) have been a legal permanent resident for at least 5 years; and
(3) have resided in the U.S. continuously for 7 years after having been admitted in any status.
2. Adjustment of Status in Proceedings
If you are the beneficiary of a Petition for Alien Relative, i.e., Form I-130, and you entered legally or someone filed an I-130 Petition for Alien Relative for you prior to April 30, 2001, you qualify to get your green card before an Immigration Judge. The same requirements which apply to those who would seek adjustment before United States Citizenship and Immigration Service (“USCIS”) apply in the Immigration Court. The most difficult thing for clients to establish usually is the legal entry. If there was not a legal entry then we must find out if you or one of your parents was the beneficiary of a I-130 petition filed on or before April 30, 2001 when you were a minor, i.e., under 21 years of age. If so, then you would only pay a fine of $1,000 to be able to adjust status and get legal permanent residency. Note, further, that for those who may have an “aggravated felony” you may seek waiver of that offense with an adjustment of status or re-adjustment of status depending upon your circumstances.
3. Consular Processing – Provisional Waiver (I-601A).
In instances where a non-citizen is married to a U.S. citizen and there was no legal entry, then we can ask the Immigration Court to close your case so that you can seek consular processing by means of the “provisional” waiver program initiated by President Obama. The most complicated aspect of this relief is demonstrating “extreme hardship” your U.S. citizen spouse and/or parents. Hardship to children does not count under the provisional waiver program. The non-citizen must also not have a criminal convictions for the provisional waiver program; a non-citizen can obtain a waiver for certain non-serious criminal convictions by way of a conventional waiver.
4. Cancellation of Removal for Non-Legal Permanent Residents.
This is a form of relief which permits a person who has never had any status in the U.S. to obtain status. It allows a person to remain in the U.S. with a grant of legal permanent residency (“green card”). It is the burden of the non-citizen to show the following:
(1) Resided in the U.S. for at least 10 years; if you left the U.S. you did not leave the U.S. during that 10 year period for more than 180 days and not more than 90 days at one time;
(2) you have not committed any serious crimes and you must be a person of “good moral character” which includes not having spent more than 180 days in jail;
(3) you have a U.S. citizen parent, spouse, or child(ren) who will suffer “exceptional and extremely unusual hardship” if you are ordered removed. The most difficult part of this form of relief is establishing “exceptional and extremely unusual hardship.”
5. U Visa
If you can demonstrate that you were a victim of a crime in which you cooperated with the police to arrest and/or prosecute the perpetrator you may be able to obtain this visa. This visa is obtainable either before the Immigration Court or USCIS and permits waivers for serious criminal offenses, including aggravated felonies.
6. VAWA (Violence Against Women Act)
If you can demonstrate that you suffered abuse at the hands of a United States citizen or legal permanent resident, you can request that you be granted legal permanent residency.
This form of relief permits people to remain in the U.S. where they demonstrate that they will be persecuted on account of race, religion, gender, political opinion, or as a member of a particular social group. It requires that you file the application within one (1) year of entering the U.S. It also requires demonstrating that you cannot relocate within your home country. Cannot be convicted of a “particularly serious crime” which includes an “aggravated felony.”
8. Withholding of Removal / Withholding under Convention Against Torture
This form of relief is usually for our clients who have serious drug convictions or other “aggravated felonies” for whom this is the only way to remain in the U.S. legally. It requires, generally, that a person show that he or she will be persecuted or tortured by someone in the government, or associated with the government, such as a gang with police ties. See, CAT Claims for our success stories concerning our firm’s success in winning these types of cases. [in progress]
9. Post-Conviction Petition in Criminal Court.
This is not a basis of relief in Immigration Court, but so integral to our approach of winning in the Immigration Court it is necessary to mention it here. Some cases presented by our clients cannot be won without vacating the conviction. We will, in most instances, attempt to ascertain whether winning in Immigration Court is possible with a conviction record. But sometimes, due to the seriousness of the conviction, there is no way around the conviction other than to seek to vacate it through post-conviction relief. Pursuing post-conviction relief before the criminal court of conviction is very difficult and time-consuming, but if you prevail, you no longer need to be concerned about having a negative mark on your record both for immigration purposes as well as employment purposes. It usually requires demonstrating ineffective assistance of counsel before the trial court.
10. Other: Voluntary Departure and Return via Consular Processing
Some books and attorneys will refer to “voluntary departure” as a form of relief. For us, it is rarely a form of relief unless you fully intend to leave and can take advantage of returning to the U.S. legally via consular processing. Voluntary departure permits you to leave within a specified period of time, up to 120 days. It prevents you from getting a deportation order which is one less thing you need for which you would seek a waiver. Voluntary departure has several pitfalls. Not only will it convert into an order of deportation if you do not, in fact, leave and report personally to the U.S. consulate within the designated time period, but it bars relief for 10 years for legal permanent residency. For these reasons, we rarely recommend voluntary departure, unless there is good chance you can return by way of consular processing. Like the provisional waiver program mentioned above, consular processing is the processing of regular waivers, for which persons must submit evidence of “extreme hardship” and, in this instance, more evidence since there is likely more to waive. We recommend regular consular processing for clients who do not qualify for the provisional waiver because of certain criminal convictions or immigration violations.