Under certain conditions, both legal and illegal immigrants may be subject to deportation. We offer the following information to help those facing or potentially facing the deportation process, but we urge you to consult an immigration lawyer regarding your individual case.
The Immigration and Nationality Act, amended by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (known as INA and IIRIRA, respectively) stipulates the removal proceedings through which it is decided whether a noncitizen in the United States shall face deportation.
Initiation of the Deportation Process
Generally speaking, you will first receive a document known as an “NTA” (that is, a Notice to Appear in removal proceedings). The NTA:
- Gives some personal information (e.g. name and native country)
- Lists the charges you are facing
- Says that you must attend a removal hearing, and explains what will happen if you do not
As the NTA also states, you have the right to an attorney. However, it is up to you to find and pay your immigration lawyer. If the Immigration Judge (or “IJ”) who conducts your removal hearing finds that the NTA is correct, you may request any desired relief from removal. Your immigration attorney can advise you as to the pros and cons of each form of relief, and argue for relief on your behalf. If the judge does not find you eligible for any form of relief, you will be deported. If he/she does, another hearing will follow.
Working with an Immigration Lawyer to Stay in the US
An immigration lawyer can help you determine for which of several form of relief from removal you may be eligible. Below, we have provided brief explanations of cancellation of removal, asylum, and adjustment of status, which are some of the most oft-granted forms of relief.
Cancellation of Removal
This is perhaps the simplest form of relief: precisely as its name suggests, the IJ simply ends your removal proceedings. If you are an immigrant holding a green card (or are some other type Lawful Permanent Resident, or LPR), you need to have at least seven years of continuous residence in America since first arriving, and you must have have been an LPR for five or more years. Furthermore, you must:
- Not have been previously granted this form of relief,
- Not be employed on a work crew,
- Not have been convicted of any aggravated felony,
- Not be in the US on an exchange program
- Not be considered a terrorist
If you are an illegal immigrant (or any other type of non-Lawful Permanent Resident), the requirements are a bit stricter. First of all, the above-mentioned residence requirement is extended to ten years, and also demands that during that time, your record has remained clear of certain illegal acts. Furthermore, during those ten years you must:
- Not have been served with a Notice to Appear
- Have been a person of what the law calls “good moral character”
- Be in such a situation that your deportation would be excessively hard on a family member who is an LPR
As with all forms of relief, an immigration attorney is most able to evaluate your fulfillment of these requirements, and (if applicable) demonstrate it at the hearing.
Asylum
If you have a history or legitimate fear of persecution in your native country, are not guilty of any aggravated felony, and are not considered a threat to America’s national security, the Immigration Judge may grant your request for asylum. Before requesting asylum, we recommend evaluating your eligibility with an experienced immigration lawyer. Additionally, keep in mind that asylum is rarely granted if you did not apply for it within one year of arrival in the US.
Adjustment of Status
Your immigration status could be changed from non-immigrant to Lawful Permanent Resident if the Immigration and Nationality Act renders you eligible for permanent residence in the US, and an immigrant visa is available to you when you request adjustment of status. This form of relief is often granted because an American citizen, LPR, or employer has petitioned for it.
One of the reasons that appearance at removal hearings is critical (as mentioned earlier) is that failure to do so renders you ineligible for adjustment of status. Other factors that preclude eligibility include illegal entrance into the US (that is, being an “illegal immigrant”) or having overstayed or otherwise violated your visa.
Other Forms of Relief from Deportation
The preceding list is not exhaustive. The INA lists several other forms of relief that you may request during removal proceedings, so it is imperative, at the very least, to read the Act closely and completely. Furthermore, it is our strongest recommendation that you work with an immigration lawyer, who will be able to determine the options for which you are eligible, and will competently present your case before the Immigration Judge.
