HUMANITARIAN BENEFITS & WAIVERS

– CRIMMIGRATION

The intersection of criminal laws and immigration laws is often confusing and difficult to navigate. Our attorneys have a deep understanding of how criminal convictions and arrests can affect your immigration status. Traffic offenses generally will not affect your immigration status. However, some misdemeanor convictions and most felony convictions can affect your immigration status and your eligibility for relief. Whether a conviction will affect your case, depends on if you have been admitted to the U.S. Immigrants who come to the U.S. on a visa or a green card, for example, are admitted to the U.S. Immigrants who are admitted can be removable for certain crimes they commit. Immigrants who are not inspected while entering the U.S. are not admitted. Immigrants who are not admitted can be inadmissible for certain crimes they commit. Below is a list of criminal convictions that can make an immigrant removable or inadmissible.

Most common removable crimes:

• Aggravated felonies (requires sentence of at least one year), including but not limited to:
  • Murder, rape, sexual abuse of a minor
  • Crime of violence
  • Drug trafficking, trafficking in firearms or destructive devices
  • Racketeering, money laundering of more than $10,000, fraud or tax evasion involving more than $10,000
  • Theft or violent crime with a sentence order of at least one year
• Crimes involving “moral turpitude” (CIMT)
  • One CIMT committed within 5 years of being admitted to the U.S.
  • Two CIMTs committed at any time after admission to the U.S.
• Controlled substance convictions
  • Exception for only one conviction relating to possession of 30 grams or less of marijuana for personal use
• Firearms convictions
• Crimes of domestic violence

Most common inadmissible crimes:

• Crimes involving “moral turpitude”
  • Petty offense exception if the actual sentence for the crime was less than 6 months and the maximum possible sentence was for 12 months or less
• Controlled substance convictions (no marijuana exception)
• Two or more convictions of any kind for which the aggregate sentences were more than 5 years
• Prostitution

– RELIEF FROM REMOVAL

CANCELLATION OF REMOVAL FOR LAWFUL PERMANENT RESIDENTS (LPR)

Long-time Lawful Permanent Residents (LPRs) who become deportable may be able to keep their green card if they are granted LPR cancellation of removal. Cancellation of removal is only available to individuals in removal proceedings. Listed below are requirements for LPR cancellation of removal:

• Has been a permanent residence for at least 5 years;
• Has resided in the United States continuously for 7 years after being admitted in any status; and
• Has not been convicted of an aggravated felony.

In addition to satisfying the above-stated statutory requirements, an applicant for LPR cancellation of removal must establish that s/he warrants relief as a matter of discretion. An Immigration Judge (IJ) has discretion to determine whether an applicant deserves cancellation of removal. An IJ must balance the negative factors showing the individual’s undesirability as an LPR with the positive social and humane considerations presented in the each case. Individuals who are granted cancellation or removal, either as an LPR or non-LPR, cannot apply for cancellation of removal again.

237(a)(1)(H) Fraud Waivers 

Sometimes, individuals get LPR status when they are not eligible for it. This typically happens when individuals provide false information during their application process, often called fraud. In these situations, the Department of Homeland Security can legally take your green card away, even if you were not aware of the false information. Fortunately, immigration laws allow for some of these individuals to keep their green card if they can prove they deserve it. To receive one of these waivers, individuals must show the following:

• They are the spouse, parent, son, or daughter of United States citizen or LPR; and
• They were in possession of an immigrant visa or equivalent document and were otherwise admissible to the United States at the time of such admission except for the fraud or misrepresentation

An applicant for a fraud waiver does not need to show they or their qualifying relative would suffer extreme hardship if they lost their green card. However, an applicant must establish that s/he warrants relief as a matter of discretion.

Non-LPR Cancellation of Removal

Cancellation of Removal for non-lawful permanent resident is available to noncitizens who have been in the U.S. for at least ten years and do not have serious criminal history. Cancellation of removal is only available to individuals in removal proceedings. The requirements for non-LPR cancellation of removal are as follows:

• Has been physically present in the United States for at least 10 years,
• Are of good moral character,
• Has not been convicted of any crimes that would make the individual inadmissible or deportable, and
• Can show that upon removal a qualifying relative (United States citizen or LPR spouse, child or parent) would suffer “exceptional and extremely unusual hardship.”
• Can show the judge they deserve cancellation of removal as a matter of discretion because the positive social and humanitarian factors in their case outweigh the negative factors.

Adjustment of Status

In some cases, individuals facing deportation may be able to adjust their status in the United States to LPR status through their family members. This process is called Adjustment of Status. To qualify for adjustment of status, applicants must be admissible to the United States and be the beneficiary of an approved petition filed by a family member or employer. Some beneficiaries are immediately eligible to apply for adjustment of status, like spouses of United States citizens and parents of United States citizen children 21 years old or older. Other beneficiaries are not immediately eligible to apply for adjustment of status and must wait for their visa to become available. Availability depends on how many visas the law allows each year and how many other similar petitions have been filed.

With some exceptions, adjustment of status is only available to individuals who were admitted or paroled into the United States. In other words, it is usually not available to individuals who entered the United States illegally without inspection by an immigration officer. In some cases, individuals who are waved through the border are eligible to apply for adjustment of status. Also, individuals who had a family member or employer file a petition for them on or before April 30, 2001, may be eligible to pay a $1,000 fee to excuse their illegal entry to the United States. 

Waivers of Inadmissibility

Individuals who are inadmissible to the United States may be able to apply for a waiver, or forgiveness, of their inadmissibility. This can be filed together with an application for adjustment of status, if the applicant is eligible for such relief. To qualify for a waiver, the individual must show that they have a qualifying relative (United States citizen or LPR spouse or parent) who would suffer “extreme hardship” without the individual’s presence in the United States. United States citizen or LPR children are not qualifying relatives. Extreme hardship typically involves hardship that is beyond the expected hardship suffered in these circumstances. For example, financial hardship is not enough to show extreme hardship in most cases.

Asylum

A foreign national may apply for asylum as a defense to removal if the foreign national meets the definition of “refugee” under the Immigration and Nationality Act (INA) and is not subject to one of the statutory bars. A “refugee” is defined as “any person who is outside any country in which such person’s nationality or…any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that 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.

Withholding of Removal

A noncitizen in removal proceedings may apply for withholding of removal if s/he can show that s/he may not be returned to a place where s/he will face persecution because of his or her race, religion, nationality, membership in a particular group, or political opinion. Withholding is similar to asylum in that it provides protection for persons fleeing persecution on account of one of the aforementioned five grounds. However, withholding requires a higher standard of proof. Thus, in order to obtain withholding of removal, the noncitizen must show by a clear probability that s/he faces the requisite harm of a threat to life or freedom in the proposed country of removal.

Protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, which Congress codified into U.S. law, prohibits the removal of a noncitizen to a country where there are substantial grounds for believing that the noncitizen would be in danger of torture or subject to inhuman or degrading torture. A noncitizen in removal proceedings may apply for this form of relief if s/he can establish that it is more likely than not that s/he would be tortured if removed to the proposed country of removal. Their fear of torture does not need to be on account of one of the five protected grounds listed in the refugee definition in the INA.

Temporary Protected Status (TPS)

Noncitizens from certain countries may request this form of relief. The Secretary of Homeland Security, after consulting with “appropriate” government agencies, may designate a foreign state or part of a foreign state under and of the three circumstances: (A) There is an ongoing armed conflict that would pose a serious threat to the personal safety of the state’s nationals if they were returned there; (B) An environmental disaster has substantially but temporarily disrupted living conditions, and the state has requested designation because it cannot adequately handle the return of its nationals; (C) “Extraordinary and temporary conditions” prevent safe return, and permitting the state’s nationals to remain temporarily in the U.S. would not be contrary to the national interests.

Voluntary Departure

Noncitizens in removal proceedings, who meet the statutory requirements of Immigration and Nationality Act (INA) Section 240B, may request voluntary departure instead of receiving a formal removal order. There are three different forms of voluntary departure, depending on the stage of the proceeding when granted.

Voluntary departure can be granted: (1) before the removal hearing; (2) during the removal hearing; and (3) after the removal hearing. The Secretary of Homeland Security may permit certain noncitizens to depart voluntarily, either in lieu of removal proceedings or before removal proceedings have been completed, at the noncitizen’s own expense. If granted pre or post-hearing departure, the noncitizen has to depart within 120 days and s/he may be required to post bond. Noncitizens may get voluntary departure at the conclusion of the removal proceedings, at the noncitizen’s expense. Bond for voluntary departure at the conclusion of the removal proceedings is mandatory. If voluntary departure is granted at the conclusion of the removal proceedings, the maximum period the noncitizen has to depart is 60 days.

Persons who have been convicted of an aggravated felony or who are deportable as terrorists are ineligible for this form of relief. Anyone who is granted voluntary departure but fails to depart within the designated time immediately receives an order of removal and becomes ineligible for most immigration benefits.

– ADMINISTRATIVE AND JUDICIAL OPTIONS TO CHALLENGE REMOVAL

Motions to Reopen or Reconsider
A noncitizen may move to reopen or to reconsider a previous decision by filing a timely motion with an IJ or the Board of Immigration Appeals (BIA).

The central purpose of a motion to reopen is to introduce new and additional evidence that is material and that was unavailable at the original hearing. A motion to reconsider seeks a reexamination of the decision based on alleged errors of law and facts. 

Stay of Removal

A Stay of Removal prevents DHS from executing an order of removal, deportation, or exclusion. Depending on the situation, a stay of removal may be automatic or discretionary. A noncitizen is entitled to an automatic stay of removal during the time allowed to file an appeal (unless a waiver of the right to appeal is filed), while an appeal is pending before the BIA, or while a case is before the BIA by way of certification.

Except in cases involving in absentia orders where the individual was not given proper notice of their proceedings or hearing, filing a motion to reopen or reconsider will not stay the execution of any decision made in a case. Similarly, filing a petition for review in federal court also does not result in an automatic stay of a removal order. Thus, a removal order can proceed unless the alien applies for and is granted a stay of execution as a discretionary form of relief by the BIA, IJ, DHS, or a federal court. Such a stay is temporary and is often coupled with a written motion to reopen or reconsider filed with the Immigration Court, the BIA, or an appeal to a federal Circuit Court.

Administrative Appeal

The BIA is the highest administrative body with the authority to interpret federal immigration laws. The BIA has jurisdiction to hear appeals from decisions of IJs and certain decisions of DHS. Either a noncitizen or DHS may appeal a decision from the IJ. In deciding cases, the BIA can dismiss or sustain the appeal, remand the case to the deciding IJ, or, in rare cases, refer the case to the Attorney General for a decision. A precedent decision by the BIA is binding on DHS and IJs throughout the country unless the Attorney General modifies or overrules the decision.

Judicial Review

INA confers federal courts jurisdiction over certain decisions appealed from the BIA. However, subsequent laws have substantially restricted judicial review of removal orders. A noncitizen has 30 days from the date of a final removal decision to file a judicial appeal, which is generally filed with the Court of Appeals.