FORMS OF RELIEF

Cancellation of Removal

Cancellation of removal is a form of relief from a deportation order or removal order, it is often brought forth when one is facing deportation and or removal order to stop the deportation process so that the person can remain in the US:

A person may qualify for Cancellation of Removal if they:

• Have been a lawfully admitted permanent residence for not less than 5 years
• Have resided in the US continuously for 7 years after having been admitted in any status and,
• Have not been convicted of any aggravated felony

OR

• Have been physically present in the US for a continuous period of not less than 10 years immediately preceding the date of such application;
• Are a person of good moral character during such period
• Have not been convicted of an Aggravated Felony
• Establishes that removal would result in exceptional and extremely unusual hardship to the aliens spouse, parent, or child, who is a US citizen or LPR.

Adjustment of Status

Adjustment of Status is a request to immigration as a way of obtaining permanent residency in the United States instead of having to file abroad at a United States Embassy or Consulate

TYPES OF IMMIGRATION STATUSES

• Be 18 years of age;
• Be lawfully admitted as a permanent residence (LPR);
• Have resided continuously in the United States for five years (or three years if married to a U.S. citizen) after being admitted for LPR status and been physically present in the U.S. at least half time during the five years prior to filing the application for citizenship;
• Be of good moral character; and
• Support the Constitution and be disposed to the good order and happiness of the U.S.
• Lawful Permanent Resident (LPR): Permanent residency status allows a non-citizen to reside and work permanently in the United States. LPR’s are also known as green card holders. To be eligible for LPR status, the applicant must indicate an intention to reside permanently in the U.S. To become an LPR a non-citizen must petition after acquiring some other type of lawful immigration status such as a visa. Lawful permanent residents can be subject to removal after being convicted of certain criminal acts.
• Conditional Permanent Residents: Include non-citizens’ spouses and their children who applied for LPR status based on a qualifying marriage to a LPR or a citizen. The conditional status expires on the second anniversary of obtaining conditional status unless the alien and his or her spouse have jointly applied for lawful permanent resident status prior to that time.
• Family Sponsored Immigrant Visas: About 80% of all legal immigration into the US is through some type of family visa.
• Immediate relatives of a U.S. Citizen, including a non-citizen spouse, unmarried minor child, or parent if citizen is 21 or older, are not subject to numerical limitation. The alien spouse or minor child will be a conditional immigrant if marriage is entered into less than 24 months prior to the date that the visa is obtained. The following family-sponsored visas are subject to numerical limitations and are given the following orders of preference.
• Preference Level 1.: US Citizen’s unmarried son or daughter not a child. Preference level 2: Lawful permanent resident’s spouse, unmarried child, or unmarried son or daughter who is not a child.
• Preference Level 3: US Citizen’s married son or daughter.
• Preference level 4: US Citizen’s alien brother or sister. A lawful permanent resident’s spouse or unmarried minor child not otherwise entitled to a visa is entitled to the same status as the petitioning lawful permanent resident if accompanying or following to join the spouse or parent.
• Special Immigrant Juvenile Status (SIJ): A person under the age of 21 may apply for Special Immigrant Juvenile status if he or she meets the following conditions if all of the following is found by the immigration court:
• That the juvenile is dependent on the court or placed in the custody of an agency or department of a state or an individual or entity appointed by the state or a juvenile court located in the United States;  
• That reunification of the juvenile with one or both parents is not viable due to abuse, neglect, or abandonment or a similar basis under state law; and
• That there is an administrative or judicial finding that it would not be in the best interest of the juvenile to be returned to the juvenile’s or parent’s previous country of nationality or country of last habitual residence.
• Violence Against Women Act (VAWA) Petitioner: A non-citizen married to a citizen or LPR or a child of the alien may self-petition for LPR status without the cooperation of the citizen or LPR spouse or parent if:
• The spouse or child has been battered or subjected to extreme cruelty by citizen or lawful permanent resident spouse;
• The act or threatened act was one of extreme cruelty, including physical violence, sexual abuse, forced detention, or psychological abuse against the petitioner or petitioner’s child by the spouse during the marriage;
• The marriage is legal and in good faith;
• The petitioner is not the primary perpetrator of the violence; and
• The petitioner is of good moral character
• Refugee/Asylee: Individuals seeking this status must meet the following basic conditions for consideration:
• The individual has a well-founded fear of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion if returned to the home country or country of last permanent residence.
• The individual is not a security risk or perpetrator of persecution.
• The individual has not committed certain categories of crimes.

A person in the United States must generally apply for asylum within one year of admission. Once admitted the alien will be allowed to stay in the U.S. as long as expulsion from the U.S. would put them at a safety risk, unless he or she meets one of the grounds for loss of status listed below.

• The individual is able to safely return to the home country or move to another country.
• The individual no longer meets the requirements of eligibility.
• The individual has participated in persecution.
• The individual presents a security risk.
• The individual has been convicted of a serious crime, including conviction of an aggravated felony. A spouse or child of an alien admitted as a refugee/asylee is admissible if “accompanying or following to join” the refugee/asylee.
• The spouse or child cannot precede the refugee/asylee. An alien granted refugee/asylee status may apply for LPR status after one year.
• The alien must be admissible, or the Attorney General may waive the grounds for inadmissibility, with some exceptions, for humanitarian purposes or to preserve family unity.
• Non-Immigrant Temporary Visa: The law provides for a variety of categories of aliens that are eligible for visas to legally enter the United States on a temporary basis for a limited period of time. These visa holders are classified as non-immigrants because they do not plan to permanently reside in the United States. Types of applicants include vacationers, students, certain classes of temporary workers, and a variety of specialized categories. The authorized length of stay is specified in the visa.

• Special Visas:

• Religious Workers
• Panama Canal Company or Canal Zone Government Employees
• International Organization Employees or Family Member
• Broadcaster
• Physician National Interest Waiver
• Juvenile Court Dependents
• Armed Forces Members
• Afghan or Iraqi nationals who supported the U.S. Armed Forces as translators
• Iraqi nationals who worked for or on behalf of the U.S. Government in Iraq
• Diversity Visa Winners
• Victims of Trafficking (T-Visas): The T visa is a non-immigrant visa available for individuals who have been the victims of trafficking in persons if the person:
• Is or has been the victim of a severe form of trafficking of persons;
• Is physically present in the United States or its territories as a result of the trafficking;
• Is complying with any reasonable request for assistance in the investigation or prosecution of traffickers, or is unable to comply with such request due to physical or psychological trauma, or is under 18 years of age; and
• Would suffer extreme hardship
• Crime Victims and Witnesses (U-Visas): The U-Visa is a non-immigrant visa available to individuals who are in the U.S. as undocumented but meet the following requirements:
• The individual has suffered severe physical or mental abuse as a result of being a victim of criminal activity.
• The individual has been, is being, or is likely to be of help to a Federal, state, or local investigation of the criminal activity causing the abuse.
• The individual has certification from a Federal, state, or local judge, prosecutor, law enforcement officer, or other justice system official involved in prosecuting the criminal activity that he or she has been, is being, or is likely to be of help to a Federal, state, or local investigation of the criminal activity causing the abuse.

The rights of the U visa holder include the following.

• The maximum length of the U-Visa is four years unless extended.
• The U-Visa holder may apply for any other immigration benefit or status for which he or she is eligible.
• The holder of a U-Visa is eligible to apply for lawful permanent resident status with three years of continuous residence.
• Deferred Action for Early Childhood Arrivals (DACA): Type of special work permit available to individuals who entered the US at a young age as undocumented. Anyone requesting DACA must have been under the age of 31 as of June 15, 2012. You must also be at least 15 years or older to request DACA, unless you are currently in removal proceedings or have a final removal or voluntary departure order. To qualify for DACA the individual must have:
• Been under the age of 31 as of June 15, 2012;
• Came to the United States before reaching their 16th birthday;
• Continuously resided in the United States since June 15, 2007, up to the present time;
• Been physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
• Had no lawful status on June 15, 2012;
• Been currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
• Not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

*Please note that the state of DACA is currently in flux and subject to change.

Source: http://www.sji.gov/wp/wp-content/uploads/Immigration-Status-4-1-13.pdf

TYPES OF IMMIGRATION STATUSES

• Naturalized Citizen: Citizenship with no conditions on residency. To become a naturalized US Citizen, a non-citizen must:
• Be 18 years of age;
• Be lawfully admitted as a permanent residence (LPR);
• Have resided continuously in the United States for five years (or three years if married to a U.S. citizen) after being admitted for LPR status and been physically present in the U.S. at least half time during the five years prior to filing the application for citizenship;
• Be of good moral character; and
• Support the Constitution and be disposed to the good order and happiness of the U.S.
• Lawful Permanent Resident (LPR): Permanent residency status allows a non-citizen to reside and work permanently in the United States. LPR’s are also known as green card holders. To be eligible for LPR status, the applicant must indicate an intention to reside permanently in the U.S. To become an LPR a non-citizen must petition after acquiring some other type of lawful immigration status such as a visa. Lawful permanent residents can be subject to removal after being convicted of certain criminal acts.
• Conditional Permanent Residents: Include non-citizens’ spouses and their children who applied for LPR status based on a qualifying marriage to a LPR or a citizen. The conditional status expires on the second anniversary of obtaining conditional status unless the alien and his or her spouse have jointly applied for lawful permanent resident status prior to that time.
• Family Sponsored Immigrant Visas: About 80% of all legal immigration into the US is through some type of family visa.
• Immediate relatives of a U.S. Citizen, including a non-citizen spouse, unmarried minor child, or parent if citizen is 21 or older, are not subject to numerical limitation. The alien spouse or minor child will be a conditional immigrant if marriage is entered into less than 24 months prior to the date that the visa is obtained. The following family-sponsored visas are subject to numerical limitations and are given the following orders of preference.
• Preference Level 1.: US Citizen’s unmarried son or daughter not a child. Preference level 2: Lawful permanent resident’s spouse, unmarried child, or unmarried son or daughter who is not a child.
• Preference Level 3: US Citizen’s married son or daughter.
• Preference level 4: US Citizen’s alien brother or sister. A lawful permanent resident’s spouse or unmarried minor child not otherwise entitled to a visa is entitled to the same status as the petitioning lawful permanent resident if accompanying or following to join the spouse or parent.
• Special Immigrant Juvenile Status (SIJ): A person under the age of 21 may apply for Special Immigrant Juvenile status if he or she meets the following conditions if all of the following is found by the immigration court:
• That the juvenile is dependent on the court or placed in the custody of an agency or department of a state or an individual or entity appointed by the state or a juvenile court located in the United States;  
• That reunification of the juvenile with one or both parents is not viable due to abuse, neglect, or abandonment or a similar basis under state law; and
• That there is an administrative or judicial finding that it would not be in the best interest of the juvenile to be returned to the juvenile’s or parent’s previous country of nationality or country of last habitual residence.
• Violence Against Women Act (VAWA) Petitioner: A non-citizen married to a citizen or LPR or a child of the alien may self-petition for LPR status without the cooperation of the citizen or LPR spouse or parent if:
• The spouse or child has been battered or subjected to extreme cruelty by citizen or lawful permanent resident spouse;
• The act or threatened act was one of extreme cruelty, including physical violence, sexual abuse, forced detention, or psychological abuse against the petitioner or petitioner’s child by the spouse during the marriage;
• The marriage is legal and in good faith;
• The petitioner is not the primary perpetrator of the violence; and
• The petitioner is of good moral character
• Refugee/Asylee: Individuals seeking this status must meet the following basic conditions for consideration:
• The individual has a well-founded fear of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion if returned to the home country or country of last permanent residence.
• The individual is not a security risk or perpetrator of persecution.
• The individual has not committed certain categories of crimes.

A person in the United States must generally apply for asylum within one year of admission. Once admitted the alien will be allowed to stay in the U.S. as long as expulsion from the U.S. would put them at a safety risk, unless he or she meets one of the grounds for loss of status listed below.

• The individual is able to safely return to the home country or move to another country.
• The individual no longer meets the requirements of eligibility.
• The individual has participated in persecution.
• The individual presents a security risk.
• The individual has been convicted of a serious crime, including conviction of an aggravated felony. A spouse or child of an alien admitted as a refugee/asylee is admissible if “accompanying or following to join” the refugee/asylee.
• The spouse or child cannot precede the refugee/asylee. An alien granted refugee/asylee status may apply for LPR status after one year.
• The alien must be admissible, or the Attorney General may waive the grounds for inadmissibility, with some exceptions, for humanitarian purposes or to preserve family unity.
• Non-Immigrant Temporary Visa: The law provides for a variety of categories of aliens that are eligible for visas to legally enter the United States on a temporary basis for a limited period of time. These visa holders are classified as non-immigrants because they do not plan to permanently reside in the United States. Types of applicants include vacationers, students, certain classes of temporary workers, and a variety of specialized categories. The authorized length of stay is specified in the visa.

• Special Visas:

• Religious Workers
• Panama Canal Company or Canal Zone Government Employees
• International Organization Employees or Family Member
• Broadcaster
• Physician National Interest Waiver
• Juvenile Court Dependents
• Armed Forces Members
• Afghan or Iraqi nationals who supported the U.S. Armed Forces as translators
• Iraqi nationals who worked for or on behalf of the U.S. Government in Iraq
• Diversity Visa Winners
• Victims of Trafficking (T-Visas): The T visa is a non-immigrant visa available for individuals who have been the victims of trafficking in persons if the person:
• Is or has been the victim of a severe form of trafficking of persons;
• Is physically present in the United States or its territories as a result of the trafficking;
• Is complying with any reasonable request for assistance in the investigation or prosecution of traffickers, or is unable to comply with such request due to physical or psychological trauma, or is under 18 years of age; and
• Would suffer extreme hardship
• Crime Victims and Witnesses (U-Visas): The U-Visa is a non-immigrant visa available to individuals who are in the U.S. as undocumented but meet the following requirements:
• The individual has suffered severe physical or mental abuse as a result of being a victim of criminal activity.
• The individual has been, is being, or is likely to be of help to a Federal, state, or local investigation of the criminal activity causing the abuse.
• The individual has certification from a Federal, state, or local judge, prosecutor, law enforcement officer, or other justice system official involved in prosecuting the criminal activity that he or she has been, is being, or is likely to be of help to a Federal, state, or local investigation of the criminal activity causing the abuse.

The rights of the U visa holder include the following.

• The maximum length of the U-Visa is four years unless extended.
• The U-Visa holder may apply for any other immigration benefit or status for which he or she is eligible.
• The holder of a U-Visa is eligible to apply for lawful permanent resident status with three years of continuous residence.
• Deferred Action for Early Childhood Arrivals (DACA): Type of special work permit available to individuals who entered the US at a young age as undocumented. Anyone requesting DACA must have been under the age of 31 as of June 15, 2012. You must also be at least 15 years or older to request DACA, unless you are currently in removal proceedings or have a final removal or voluntary departure order. To qualify for DACA the individual must have:
• Been under the age of 31 as of June 15, 2012;
• Came to the United States before reaching their 16th birthday;
• Continuously resided in the United States since June 15, 2007, up to the present time;
• Been physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
• Had no lawful status on June 15, 2012;
• Been currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
• Not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

*Please note that the state of DACA is currently in flux and subject to change.

IMMIGRATION RESOURCES

Aggravated Felonies
Avoiding Removal

Employment-Based Immigrant Visas

General Classes of Deportable Aliens

Guide to Representing NonCitizen Criminal Defendants in Pennsylvania

Immigration Project: Updated Immigration Consequences of Convictions Checklist with DACA Supplement

Inadmissibility and Waivers

Information on the Legal Rights Available to Immigrant Victims of Domestic Violence in the United States and Facts about Immigrating on a Marriage-Based Visa Fact Sheet
ICE Hold Requests
Bans on Re-Entry

We Have Rights: When ICE is Outside our Doors

We Have Rights | American Civil Liberties Union

IMMIGRATION PRACTICE GROUP QUESTIONNAIRE

Please use this form to submit a request for an immigration analysis for your non-citizen client to the Immigration Practice Group Coordinators. We will return an analysis to you within two weeks unless otherwise note on the form. 

CLICK HERE

OVERVIEW & KEY TERMS

• Crime Involving Moral Turpitude: Vaguely defined as a depraved or immoral act, or a violation of the basic duties owed to fellow man, or recently as a “reprehensible act” with a mens rea of at least recklessness. Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008). Traditionally a CIMT involves intent to commit fraud, commit theft with intent to permanently deprive the owner, or inflict great bodily harm, as well as some reckless or malicious offenses and some offenses with lewd intent.
• Aggravated Felony: Those types of criminal offenses that carry the most severe consequences in immigration court. A conviction for an Aggravated Felony will stripe the immigration court of the ability to grant any discretionary relief. See the Offenses tab for a listing of Aggravated Felonies.
• Deportable: Any non-citizen currently present in the US without lawful status is deportable. A non-citizen may become deportable if conviction of certain criminal offenses. See the Offenses table for a listing of Deportable offenses.
• Inadmissible: Individuals who are inadmissible are not permitted by law to enter or remain in the US. The Immigration and Nationality Act sets forth grounds for inadmissibility. For certain grounds of inadmissibility, it may be possible for a person to obtain a waiver of that inadmissibility. In some cases, exceptions are written into the law and no waiver is required if the exception is met.
• Cancellation of Removal: A form of relief available to non-citizens who have been placed in removal proceedings. There are different criteria for eligibility depending on an individual’s immigration status. Individuals who are convicted of Aggravated Felonies are not eligible for this form of relief.
• Adjustment of Status: The process that you can use to apply for LPR status when you are already present in the United States. It provides an avenue for individuals to obtain a Green Card without returning to their home country for visa processing.
• Detainer: An immigration detainer or immigration hold is a tool used by US Immigration and Customs Enforcement (ICE) and other Department of Homeland Security (DHS) officials when the agency identifies potentially deportable individuals who are held in jails or prisons across the nation. Detainers can be issued by an authorized immigration official or local police officer designated to act as an immigration official. Detainers instruct the detaining facility to hold individuals for up to 48 business hours beyond the time they otherwise would have been released. Detainers are only requests made by ICE; compliance is voluntary. The detaining facility does have the discretion not to comply with the request. In order for an immigration official to issue a detainer they must have probable cause that the person is deportable.

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