Deportation, or “removal”, occurs when a non-citizen alien is ordered to leave the United States. This may occur for several reasons, such as an expired visa or for certain criminal convictions. It should be noted that immigration authorities and agencies currently use the term “removal” instead of deportation. The term removal may also include other proceedings such as exclusion (barring an immigrant from entry into the U.S.).
Under very specific circumstances, an alien who is facing removal may be eligible for relief from removal. If they are found to be eligible, the person will not be removed from the U.S., or their removal may be postponed until a later date. The alien has the burden of proving that they are eligible for such relief.
Relief from removal generally falls under two categories: 1) Discretionary relief; and 2) Administrative/Judicial Relief. Discretionary relief is available while removal proceedings are being conducted. Administrative and Judicial relief is available after removal hearings have been concluded. The lists below are general descriptions of these types of relief; more details can be learned by inquiring with a lawyer.
Some forms of Discretionary Relief from removal include:
- Voluntary Departure– This is where the alien is allowed to leave the U.S. on their own freewill. This is the most common type of relief. While the person will still be leaving the country, voluntary departure allows the person to leave without bearing the stigma of deportation. This may allow them to re-enter in the U.S. in the future after a certain amount of time. Aliens who are granted voluntary departure must depart within a specified period of time. Failure to leave the U.S. within that time will result in further penalties such as a fine.
- Cancellation of Removal- This is only granted to certain aliens who qualify (usually lawful permanent residents). The person must satisfy a long list of requirements, including continuous residency requirements, no criminal record, and a showing of “extreme hardship”
- Adjustment of Status– Here the immigration judge allows an alien to change their status from non-immigrant to that of lawful permanent resident. Again, various requirements must be met in order to qualify for this form of relief.
- Asylum– Relief from removal is granted in limited circumstances where the alien would face severe political persecution if they return to their country of origin. Asylum is generally difficult to obtain as it requires a showing that the persecution is real and not imagined or exaggerated.
Administrative or judicial forms of relief are similar to appeals. They seek to overturn or challenge the conclusion that was reached by an immigration judge or immigration panel. These types of relief may include:
- Motion to Reopen or Motion to Reconsider- The alien may file a motion to have their case reopened or reconsidered. The purpose of the motion is to introduce new or additional evidence that may not have been available at the initial hearing. The person’s case will be reexamined in light of the new facts. These motions do not automatically prevent removal; the judge must issue a stay of removal (see below) while the case is being reconsidered.
- Stay of Removal- A judge may issue a stay of removal, which prevents immigration officials from executing an existing removal order. The stay of removal may either be automatic or discretionary.
- Administrative Appeal- This is where the alien is allowed to appeal to the higher governing agencies within the immigration system.
- Judicial Review- This allows the alien’s case to be heard in a Federal court. However, federal jurisdiction over immigration removal cases is very limited; only certain cases qualify for federal judicial review, as the procedure is somewhat complex.
Each of the types of relief listed above is associated with various requirements, filing deadlines, and eligibility factors. You may need to consult with an immigration lawyer to determine whether or not you are eligible to claim any of these forms of relief from removal.
Relief from deportation or removal allows an alien to be excused from removal. This means that they will be allowed to remain in the U.S., even if it means being subject to stricter codes of conduct (such as not being involved in criminal charges). You will probably need to work with an immigration lawyer if you are considering filing for relief from removal. Your attorney can discuss all the details of each option with you, and can inform you of which type of relief will be best for you.