Defenses to Removal
Cancellation of Removal for LPRs
8 USC 1229b(a)
Lawful Permanent Resident cancellation of removal is a form of relief that cancels removal for LPRs and permits them to retain their LPR status. This relief is only available in removal proceedings.
To be eligible for cancellation of removal, an LPR must have:
been an LPR for at least five years prior to the application being filed;
continually resided in the U.S. for seven years after being admitted in any status;
not been convicted of an aggravated felony.
If eligible, the granting of cancellation of removal is a discretionary decision by the immigration judge in which the judge examines a 'totality of circumstances'. To receive cancellation of removal, a non-citizen must not have received either form of cancellation of removal relief in the past.
Cancellation of Removal for non-LPRs
8 USC 1229b(b)
Non-LPR cancellation of removal is a form of immigration defense available to non-citizens who have been placed in removal proceedings in immigration court. This relief is not available unless the non-citizen is in removal proceedings. If eligible, the granting of cancellation of removal is a discretionary decision by the immigration judge in which the judge examines a 'totality of circumstances.' If successful, the non-citizen is granted lawful permanent residency.
To be eligible for cancellation of removal, a non-LPR must have:
been continuously physically present in the U.S. for at least ten years;
had good moral character throughout this time and up through the granting of non-LPR cancellation of removal;
not been convicted of an offense(s) otherwise subjecting the non-citizen to a criminal ground of inadmissibility (8 USC 1182(a)(2)), criminal ground of deportability (8 USC 1227(a)(2)), or a ground of deportability based on failure to register and falsification of documents (8 USC 1227(a)(3);
established that removal of the non-citizen would cause "exceptional and extremely unusual hardship" to the individual's spouse, parent, or child who is a United States citizen or lawful permanent resident; and
never have previously been granted either form of cancellation of removal.
Stop-Time Rule for Cancellation of Removal
The period of continuous presence or residence necessary for both forms of cancellation of removal can be permanently stopped by the issuance of an NTA or when an individual commits a ground of inadmissibility (8 USC 1182(a)(2)) that renders them inadmissible or deportable. If either of these scenarios occurs prior to the non-citizen acquiring the requisite period of continuous presence or residence for either form of cancellation of removal, the non-citizen will not be eligible for cancellation of removal.
Asylum is a humanitarian form of relief for non-citizens who:
experienced past persecution or fear future persecution;
based on their race, religion, nationality, membership in a particular social group, or political opinion;
by or with the acquiescence of the government of the country of which they are fleeing.
An affirmative application for asylum must be filed within a year of a non-citizen's initial entry to the United States, however a waiver of this requirement may be granted in exceptional circumstances. Asylum can also be raised as a defense to removal in immigration proceedings.
A non-citizen will be barred from receiving asylum if they have been convicted of a "particularly serious crime."
Decision to grant asylum is discretionary.
A non-citizen can apply for Lawful Permanent Resident status after one year of being granted asylum.
Statutory Withholding of Removal
8 USC 1231(b)(3)
Withholding of removal is a form of humanitarian relief that, similar to asylum, is based on past or fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion, by or with the acquiescence of a government entity. This form of relief is only available in removal proceedings and the burden of proof is higher than what is required for asylum. The burden is on the non-citizen to demonstrate that it is more likely than not that they will face persecution on account of a protected ground if removed to their country of origin.
A non-citizen will be barred from receiving withholding of removal if they have been convicted of a "particularly serious crime."
Withholding of removal is not a discretionary form of relief and is not subject to the one-year filing deadline.
If granted withholding of removal, a non-citizen may seek work authorization but has no pathway to becoming a lawful permanent resident (LPR) or a U.S. Citizen.
Withholding of Removal Under the Convention Against Torture (CAT)
8 CFR 208.16
If a non-citizen is placed in removal proceedings, they can seek relief under the Convention Against Torture (CAT). An applicant for relief bears the burden of demonstrating that it is more likely than not that they will be tortured if removed to their country of origin. A non-citizen will be barred from receiving withholding of removal under CAT if they have been convicted of a "particularly serious crime."
Withholding of removal under CAT prohibits the return of an individual to their home country. This status can only be terminated if the individual's case is reopened and if DHS establishes that they are no longer likely to be tortured in their country of origin.
If granted withholding of removal under CAT, a non-citizen is eligible to receive work authorization but has no pathway to becoming a lawful permanent resident (LPR) or a U.S. Citizen.
Deferral of Removal Under the Convention Against Torture (CAT)
8 CFR 208.17
Deferral of removal under CAT is a more temporary form of relief than withholding. Deferral of removal under CAT is appropriate for individuals who would likely be subjected to torture, but who are ineligible for withholding of removal, such as persecutors, terrorists, and certain criminals. Deferral of removal can be terminated more quickly and easily than withholding of removal.
A non-citizen may also continue to be held in detention despite a grant of deferral of removal under CAT.
Adjustment of Status
An individual may be eligible to adjust status (also known as 'obtaining a green card') through a U.S. Citizen or Lawful Permanent Resident family member or spouse, through a U.S. employer, by virtue of asylee or refugee status, based on a grant of SIJS, or upon receiving a U Visa or T Visa. A non-citizen can only apply for adjustment of status in removal proceedings if a visa is immediately available (i.e. through a petition sponsored by an immediate relative).
Re-adjustment of Status
LPRs who are rendered deportable and are in removal proceedings, can seek to re-adjust their status to that of an LPR based on certain family relationships, provided they are not inadmissible, or, if inadmissible, they are eligible for a waiver of inadmissibility.
A U-Visa is a non-immigrant visa for victims of certain crimes who have been, or are likely to be cooperative with law enforcement in the investigation or prosecution of a crime. A U-Visa is a temporary form of immigration status that allows a person to lawfully live and work in the United States. If a non-citizen receives a U-Visa, a U-Visa may also be available for their qualifying family members. A non-citizen may apply for lawful permanent resident status after three years of U-Visa status. A U-Visa must be certified by a designated certifying government agency, such as a local law enforcement agency.
T-Visa (Human Trafficking Victims)
T nonimmigrant status is a temporary immigration benefit that enables certain victims of a severe form of human trafficking to remain in the United States for up to 4 years if they have assisted law enforcement in an investigation or prosecution of human trafficking. T nonimmigrant status is also available for certain qualifying family members of trafficking victims. T nonimmigrants are eligible for employment authorization and certain federal and state benefits and services. T nonimmigrants who qualify may also be able to adjust their status and become lawful permanent residents.
Special Immigrant Juvenile Status (SIJS)
Special Immigrant Juvenile Status (SIJS) is a federal law that assists certain children who are foreign nationals in obtaining legal permanent residency. Individuals under the jurisdiction of a juvenile court (“family court”, “orphan’s court”, or some other name, depending on which state it is in) can apply for SIJS if they are: (1) under 21 at the time of filing; (2) unmarried; (3) declared dependent by a juvenile court in the U.S., or have been placed in the custody of a state agency or other individual entity by such a court; (4) unable to reunify with one or both parents due to abuse, neglect, abandonment, or a similar basis under state law; and (5) whose return to their home country is not in their best interest. See 8 USE 1101(a)(27)(J)(i)-(ii); 8 CFR 204.11(a).
If granted SIJS, an individual may then apply for adjustment of status to Lawful Permanent Resident status. An individual who is granted LPR status based on SIJS cannot petition for LPR status for their parent, even if such parent was not the parent who was found to have abandoned, abused, or neglected the SIJS recipient.
Deferred Action for Childhood Arrivals (DACA)
Under DACA, an individual is eligible for work authorization and is permitted to remain in the United States for a renewable two year period. DACA is not lawful status but only defers removal. USCIS is currently accepting initial and renewal applications. There is not currently a pathway to LPR status or naturalization for DACA recipients.
An individual is eligible for DACA if they:
were under 31 years of age on June 15, 2012;
came to the U.S. while under the age of 16;
have continuously resided in the U.S. since June 15, 2007;
were physically present in the U.S. on June 15, 2012; and
are currently enrolled in high school, have graduated from high school, obtained a GED, or are a veteran of the Army or Coast Guard.
Temporary Protected Status (TPS)
The U.S. government may grant Temporary Protected Status (TPS) to persons already in the United States who came from certain countries experiencing conditions of war or natural disasters. TPS allows a person to live and work in the United States for a specific time period, but it currently does not lead to U.S. permanent residence (a green card) or naturalization.
Violence Against Women Act (VAWA)
A sweeping response to the perception of increased violence against women in America, the Violence Against Women Act (VAWA) of 1994 was a broad-based law that created everything from funding of domestic-violence programs to new Civil Rights remedies for women who were victims of gender-based attacks. Under VAWA, battered foreign nationals who are married to, or recently divorced from US Citizens or Lawful Permanent Residents can obtain Lawful Permanent Residence or remove the condition on their 2-year Conditional Permanent Residence cards without involvement of their abusive spouse or former spouse. If the foreign national has never been married to their abuser, or if their abuser is not a US Citizen or Lawful Permanent Resident, they most likely do not qualify to self-petition for Lawful Permanent Residence under VAWA. However, the foreign national may qualify for a U-visa.
This is the process by which a foreign-born individual becomes a citizen of the United States. To naturalize, immigrants must be at least 18 years old; have been lawful permanent residents of the United States for the requisite statutory period (generally five years, but three years if married to a U.S. citizen); demonstrate a basic knowledge of English, American government and history; and have good moral character for the statutory period. Certain criminal conduct and convictions can bar good moral character permanently or for the statutory period.
Voluntary departure allows an individual to depart from the country, without an order of removal, at his or her own expense. The departure may or may not have been preceded before an immigration judge. The individual allowed to voluntary depart leaves but does not have a bar to reenter the United States due to a removal order.