Asylum may be granted to people who are already in the United States and are unable or unwilling to return their home country 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. If one is granted asylum, they can live and work in the United States. Political asylees also will be able to apply for permanent resident status one year after being granted asylum.
Applicants for political asylum must file an I-589 with USCIS in order to initiate the filing process. Once the I-589 is filed, the applicants will be scheduled for an interview at a USCIS asylum office where a decision will be made on the application. At the USCIS asylum office, the I-589 will be denied, approved or referred to an immigrant judge. Applicants for political asylum are eligible for an employment authorization document after 180 days have elapsed since the I-589 filing.
An I-589 may also be filed in removal proceedings as a defensive measure to prevent removal. In this situation, there is no interview at a local USCIS asylum office and the application will be directly determined by an immigration judge.
Withholding of Removal
Applications for political asylum must be filed within one year of the applicant’s entry in to the United States, unless the applicant qualifies for exceptions to this deadline. Individuals who are ineligible for political asylum because they applied after one year will have to apply for withholding of removal. Withholding of removal is a status which is similar to political asylum but not as secure. Withholding applications are also made with an I-589 form but can only be decided in removal proceedings by an Immigration Judge. However, an interview is conducted at an USCIS asylum office for evidentiary purposes if the I-589 is initially filed prior to the onset of removal proceedings. Like political asylum, applicants for withholding of removal can apply for an employment authorization document after 180 days have elapsed since the I-589 filing.
People who obtain withholding of removal have the right to remain in the United States and work legally. Unlike asylees, people with withholding of removal do not have the right to apply for legal permanent residence. People with withholding of removal actually have a final order of removal (deportation) against them, so if they ever travel outside the United States and attempt reentry, they will not be permitted to return. In other words, the Immigration Court is withholding the removal from the United States of the affected individuals but this does not mean that a beneficiary of withholding of removal has the right to enter and leave the country as they please.
There is also a higher burden of proof for those seeking withholding of removal than is required for political asylum. To obtain withholding of removal an applicant has to prove that it is more likely than not that they will be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion.
UN Convention Against Torture
The United Nations Convention against Torture is an international human rights instrument which aims to prevent torture. The Convention requires states to take effective measures to prevent torture within their borders, and forbids states to return people to their home country if there is reason to believe they will be tortured. An individual who does not meet the asylum or withholding of removal threshold of fearing persecution in their home country on account of race, religion, nationality, membership in a particular social group, or political opinion can file an I-589 on this basis if they fear torture on account of any reason. However like withholding of removal, there is a much higher burden of proof than the one required for political asylum and relief under the Convention against Torture will not result in legal permanent residency.
Voluntary departure allows individuals who would otherwise be removable to leave the United States at their own expense within a predetermined amount of time to avoid a final order for removal. It should be noted that voluntary departure is not available in all cases.
An individual who is issued a removal order may be barred from reentering the United States for up to ten years and may be subject to civil and criminal penalties if he or she enters without proper authorization. In addition to these penalties an individual with a removal order is barred from applying for cancellation of removal or any adjustment of status or other immigration benefit for ten years after the order. Therefore if one is placed in removal proceedings and no other immigration relief is available (ex. political asylum, adjustment of status) it may be best to apply for voluntary departure in order to avoid a removal order.
Individuals may apply for voluntary departure either prior to the Master Calendar hearing or at the conclusion of proceedings, provided that the individual meets the necessary requirements under applicable law. Once a voluntary departure order is entered by the Immigration Court, the affected individual must leave the United States within the departure period allotted by the court. There are substantial penalties for failing to leave the United States under a voluntary departure order, one of them is that the order will become a final order of removal. In situations where new relief becomes available after the entry of a voluntary departure order, the affected individual may attempt to reopen proceedings with the court. However, prior to the filing of such a motion it is best that one consult with an attorney to determine what their options are.
240A Cancellation of Removal
Often times, legal permanent residents may find themselves in removal proceedings as a result of a past criminal history. Many times these individuals are living a law abiding life after the alleged criminal conduct and the impending removal will result in a destruction of their marriage, family ties with children, loss of productive employment and loss of United States residency and removal to their country of origin. This seems like an unfair result as people make mistakes at some point in life. However, immigration law does allow for legal permanent residents to apply for relief from removal in the form of 240A Cancellation of Removal.
Any alien admitted for lawful permanent residence who has been placed in Removal proceedings before an Immigration Court and who is prima facie eligible for relief from such proceedings, may present favorable evidence on his/her behalf (documents, certificates, letters of recommendation, awards, affidavits of witness, live witness testimony, experts, etc.) and request that an Immigration Judge weigh the positive and negative factors present in his case to determine whether or not the alien may be permitted to retain his lawful permanent residence and remain in the United States in lieu of being removed by formal order.
A grant of an Application for 240A Cancellation Removal has the effect of “pardoning” or “forgiving” the basis for the alien’s deportability and returning his/her status to that of a lawful permanent resident. Only certain grounds of deportability may be waived by a grant of Cancellation of Removal. An alien is only eligible for one (1) grant of such relief in a lifetime. A denial of an Application for Cancellation of Removal results in an administrative order returning the alien to their country of designation (citizenship, nationality, or last residence) through an order of removal from the United States. If an alien accepts an order of removal or deportation, the Department of Homeland Security will carry out the order and physically remove the alien from the country. Alternatively, an alien may seek review before the Board of Immigration Appeals in Falls Church, VA, and thereafter in a Federal Court of Appeals for the District in which he resides.
In order for a legal permanent resident to request this 240A cancellation of removal, they have to show that:
they have been an alien lawfully admitted for permanent residence status for not less than five (5) years;
they have resided in the United States continuously for seven (7) years after having been admitted in any status; (note that the initiation of removal proceedings through a notice to appear; certain criminal convictions; and national security grounds will stop the accumulation of time towards the seven years continuous residence requirement)
they have not been convicted of an “aggravated felony” as defined by the applicable Immigration law
A 240A cancellation removal case is very complicated and it is best for an individual in removal proceedings to consult with an experienced immigration lawyer. Family ties in the United States and hardship to the legal permanent resident are not mandatory requirements for 240A relief but they often strengthen one’s claim for cancellation of removal. Therefore it is best to provide an immigration judge with a consistent and thorough account of an individual’s life and how removal would have a negative effect on that person and their family. Furthermore, the majority of removal cases involving green card holders result from past criminal conduct. At Stilianopoulos Law Office PA, we compliment our experience in immigration matters with our practice of trying criminal matters as well. This is an extra benefit to any legal permanent resident in removal proceedings as our firm will use our expertise in both areas to reach a satisfactory result for our clients.
240B Cancellation of Removal
Similar relief is also is available to non-Legal Permanent Residents who are undocumented, or who have violated their non-immigrant status by not complying with the requirements of their immigration status; or who have overstayed their I-94 departure date. Certain non-Legal Permanent Residents can avoid removal in the form of 240B Cancellation of Removal. However this form of relief is more limited than 240A Cancellation of Removal as the requirements are more stringent and the scope of disqualifying criminal offenses is broader. In short for an alien to request 240B cancellation of removal, an alien must demonstrate that:
they have been physically present in the United States for ten (10) years preceding the date of the request;
they have been a person of good moral character during those ten (10) years (no criminal or immigration record that may affect a determination of good moral character);
they have not been convicted of an offense as described under;
212(a)(2): Controlled substance violations, crimes involving moral turpitude.
237(a)(2): Deportable criminal offenses
237(a)(3): Documentary fraud;
that their removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child who is a citizen of the United States or a lawful permanent resident.
Like 240A, 240B Cancellation of Removal is a very complicated issue and demands much detail in convincing an immigration judge that one merits this form of relief. Even if an alien satisfies the physical presence requirement, requisite good moral character determination and has no disqualifying criminal convictions; an alien still has to prove sufficient family ties in the United States and exceptional and extremely unusual hardship to his or her family in the event of removal. This is a much more difficult standard than that for legal permanent residents and proving an exceptional and extremely unusual hardship requires much legal research and convincing arguments as mere hardship is not sufficient in order to obtain a 240B grant of cancellation of removal.
In certain situations, legal permanent residents, undocumented individuals and non-immigrant status violators can also obtain relief from removal in the form of a 212(h) waiver. A 212 (h) waiver allows one to obtain legal permanent resident status through a family member even though they have criminal convictions. It can waive the following crimes:
- Crimes of “moral turpitude” except murder or torture
- Multiple criminal convictions
- Prostitution and commercial vices
Only one drug offense (whether one has admitted to the act or was actually convicted) of simple possession of 30 grams or less of marijuana (no other drug crimes can be waived)
Serious criminal offenses that involved a grant of “immunity” to keep from being prosecuted
This type of relief can be obtained outside of removal proceedings through the adjustment of status process/consular processing or in removal proceedings through the filing of an adjustment of status application with an immigration judge.
To be granted the 212 (h) Waiver one needs proof that:
A. They are the husband, wife, parent, daughter or son of a
B. U.S. citizen or lawful permanent resident who would suffer
C. “Extreme hardship” if one was kept out of or forced to leave the U.S.
A. It has been at least 15 years since one has committed the crime;
B. Allowing that individual into the U.S. would not harm the welfare, safety or security of the country; and
C. That individual has been rehabilitated (has changed for the better and has not committed new crimes).
The person seeking relief is a VAWA self-petitioner and at the Attorney General’s discretion receives consent to apply for a visa, admission to the U.S. or adjustment of status.
The availability of 212(h) waivers vary by the immigration status of the applicant ex. they may be applying in proceedings or directly with USCIS, they may be legal permanent residents, they may have been placed in proceedings on a return trip to the United States from a foreign country or they are applying for the waiver on account of being a VAWA self-petitioner who has been abused by a United States Citizen or legal permanent resident.
If this relief is being requested by a legal permanent resident in proceedings, that individual also needs seven years of continuous residence in any lawful status (does not need to be accrued exclusively as a legal permanent resident) and cannot have aggravated felony convictions. The seven year continuous residence period for a legal permanent resident 212(h) waiver differs from the cancellation of removal context in that the accumulation of time is not stopped by the commission of certain offenses. However, the issuance of a Notice to Appear will stop the accrual of continuous residence.
Due to the complexity and many avenues of relief for a 212(h) waiver, it is best to hire an immigration lawyer with sufficient knowledge of this area of law. The Stilianopoulos Law Office PA is proud to say that we have assisted clients in the past with 212(h) waivers and promise to do our best for our current and future clients who necessitate this type of relief.