There may still be some avenues to stay in the U.S. once a immigrants become removable. There are various forms of relief from removal, but there complexity is beyond the scope of these materials. A defender should contact an immigration attorney if it becomes evident that the client either is already removable or will unavoidably become removable because of an impending criminal conviction. However, a defender may expedite this consultation by being able to do some preliminary screening for possible forms of immigration relief. Below are some examples of forms of relief from removal available to some immigrants.76
C
ANCELLATION OFR
EMOVALAn immigration judge may grant cancellation of removal to an immigrant and thus terminate the removal proceedings against him or her. This grant is at the discretion of the judge, but to even be statutorily eligible for it, different categories of immigrants must meet different criteria.
LPRs Non-LPRs Victims of Domestic Abuse
• They have been a lawful permanent resident for over five years
• They have “resided in the United States continuously for 7 years” after being lawfully to the U.S in any status, and
• They “have not been convicted of any aggravated felony77.”
• They have “been physically present in the United States” continuously for the 10 years prior to their application for cancellation of removal, • During those 10 years they
have had “good moral character”78
• They have not been convicted of any crime that qualifies under an inadmissibility or deportability ground, subject to some waivers for being a victim of domestic violence, and • They demonstrate that their
removal would result in “extreme and unusual
hardship” for a spouse, child or parent who is an LPR or U.S. Citizen.79
• They or their child have been “battered or subjected to extreme cruelty” by a U.S. Citizen LPR spouse,80
• Have been physically present for 3 years
• Had “good moral character” for 3 years
• Not been convicted of a crime that qualifies under an inadmissibility or
deportability ground, subject to waivers for victims of domestic violence, and • “Removal would result in
extreme hardship to” the immigrant, the immigrant’s child or parent.81
76 For more information about these and other forms of discretionary relief, See Kurzban’s Immigration Law Sourcebook14th Ed., 2014…;
Immigration Relief Toolkit For Criminal Defenders, Immigrant Legal Resource Center, 2015, http://www.ilrc.org/files/documents/17_relief_toolkit_jan_2015_final.pdf .
77 [internal citation to aggravated felonies section]. 78 8 U.S.C. § 1101(f)
79 8 U.S.C. § 1229b(b)(1)
80 The victim, or parent of the victim need not have legitimately married the abusive spouse if they intended to do so but were not able because
of the spouses bigamy. 8 U.S.C. §1229b(b)(2)(A)(i)(III).
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A
SYLUM,
W
ITHHOLDING OFR
EMOVAL,
C
ONVENTIONA
GAINSTT
ORTUREAsylum, like cancellation, is form of discretionary relief from removal that may be available to immigrants meeting certain statutory criteria. This relief is made to protect those who have been persecuted in their home country, or who have a well-founded fear of being persecuted upon return. To be statutorily eligible for asylum, immigrants must fit the definition of “refugee” contained in 8 U.S.C. §1101(a)(42)(A). This requires that they are “unable or unwilling to return to” and/or avail themselves of the protection of their home country, or country of last habitual residence, “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion[.]”82An immigrant must apply for asylum within one year of when he or she entered the U.S. unless the immigrant can prove extenuating circumstances.83If the immigrant has missed this deadline and cannot prove such circumstances, he or she may still be eligible for withholding of removal¸ or, if he or she can show that it is more likely than not that the immigrant will be tortured upon return, relief under the Convention Against Torture (CAT).84
D
EFERREDA
CTIONDE F E R R E D AC T I O N F O R CH I L D H O O D AR R I V A L S ( D A C A )
An immigrant may also apply for DACA in removal proceedings for relief. To be eligible for DACA, in its current form, an immigrant must
• Have been physically present in the U.S. without lawful status and under the age of 31 on June 15, 2012,
• Have arrived in the U.S. before his or her 16th birthday,
• Have maintained continuous residence in the U.S. since June 15, 2007,
• Currently be in school or have obtained a high school diploma or GED, or have been honorably discharged from the U.S. Coast Guard or Armed Forces
• Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and not otherwise pose a threat to national security.85
The federal government is currently in the process of releasing a new form of DACA, which alters some of the eligibility requirements for the program. Under this “DACA II”, the 31 year age limitation should be removed and the start date of continuous permanent residence should be January 1, 2010.86
DE F E R R E D AC T I O N F O R PA R E N T S O F AM E R I C A N S O R LA W F U L PE R M A N E N T RE S I D E N T S
82 8 U.S.C. § 1101(a)(42)(A).
83 8 U.S.C. § 1158(a)(2)(B); (D).
84See 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 208.16
85Consideration of Deferred Action for Childhood Arrivals, USCIS, http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-
arrivals-daca.
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On November 20, 2014, President Obama also announced a follow up program to DACA that would extend similar administrative relief to certain noncitizen parents of US citizens and LPRs. As of April 2015, the program has not yet begun accepting applications.87
V
OLUNTARYD
EPARTUREAlthough a form of ‘relief’, if an immigrant is granted voluntary departure during removal proceedings this does not prevent him or her from being required to leave the country. What it does do, however, is lower the restrictions about re-entering the United States. Generally, if an immigrant is ordered removed from the U.S., they may not legally return to the U.S. for 10 years on a first removal order, 20 for the second and permanently if he or she has been convicted of an aggravated felony.88 If the immigrant re-enters or is found attempting to re-enter the U.S. during one of these statutorily barred periods, this is a federal felony.89This felony is subject to drastic sentencing increases if the immigrant was originally removed on the basis of criminal convictions; a person removed because of an aggravated felony may be sentenced up to 20 years.90However, if, rather than being ordered removed, the immigrant is granted voluntary
departure, the bar on his or her re-entry into the U.S. only lasts 3 years.91
87See supra note 11 and accompanying text. 88 8 U.S.C. § 1182(a)(9)(A)(ii).
898 U.S.C. § 1326(a). 90 8 U.S.C. § 1326(b) 91 8 U.S.C. § 1182(b)(i)(I)