Legal Protection Against Deportation

Immigration and Customs Enforcement (ICE) enforces immigration laws in the U.S. ICE immigration officer duties include detaining individuals for deportation and expedited removal. When the federal government determines that non-citizens should be removed from the country, undocumented immigrants can request certain types of protection. These types of immigrant protection generally fall into two categories:

• Discretionary stays
• Administrative stays or judicial protection

A stay of removal stops the Department of Homeland Security (DHS) from executing a final order of removal. The U.S. government agencies and bodies that can issue a stay include DHS and the Board of Immigration Appeals (BIA). Below is a list of the types of relief available in both categories.

U.S. immigration law can change at any time. New presidential administrations can make significant immigration policy changes that affect immigrants all across the country. For legal advice about getting a stay of your deportation order, talk to a local immigration lawyer.

Discretionary Protection

You can request discretionary protection if you are going through deportation and removal proceedings. However, you have the burden of proving that you qualify for protection under the law and deserve the protection that an immigration judge can grant. There are multiple factors the immigration judge considers when deciding to grant a stay of removal, including:

• Likely to succeed on the merits
• The applicant will face irreparable injury without a stay
• Whether a stay will substantially injure other interested parties
• The public interest

Cancellation of Removal

For lawful permanent residents (green card holders), you may be eligible for cancellation of removal if you meet the following requirements:

• A permanent legal resident for the last five years
• Continuously residing in the United States for at least seven years after being legally admitted
• Not committing an aggravated felony

You could receive a cancellation of removal if you are a non-permanent resident and you meet the following conditions:

• Has been present in the United States for the last 10 years
• Has been a person of good moral character during that period
• Has not committed a crime that could lead to deportation
• Can show that deportation would cause exceptional and extremely unusual hardship to your spouse, parent, or children, provided they are U.S. citizens or lawful permanent residents

Asylum

Immigrants facing persecution in their country of origin can apply for asylum or refugee protection. Refugees apply for protection while outside the country. Asylum seekers apply for protection within the U.S. or at a port of entry.

An asylum seeker must demonstrate the inability to return to their home country due to:

• Past persecution
• A well-founded fear of persecution based on race, religion, nationality, social group membership, or political opinion

To apply for asylum, an alien must submit Form I-589 within one year of arrival in the United States. Do not miss this deadline, as it could leave you at risk of deportation.

Adjustment of Status

This is a form of protection where your immigration status will change from “temporary non-immigrant” to “permanent resident.” File Form I-485, Application to Register Permanent Residence or Adjust Status.

You may not qualify for an adjustment of status if you:

• Committed a crime
• Failed to appear for trial
• Did not leave the country after being granted voluntary departure

Voluntary Departure

Voluntary departure is often viewed as a last resort. It allows you to leave the United States without the stigma of a formal removal order. This would make it easier to reenter the U.S. in the future.

If your request for voluntary departure is approved, you must admit that you are removable. However, if you do not leave the country on time, you will be fined, deported, and likely face a ban on reentry to the U.S. for at least 10 years.

Judicial and Administrative Protection

Judicial and administrative forms of relief are available after your deportation hearings end. These forms of protection are similar to an appeal because they seek to revoke or challenge an order issued by an administrative judge. Your case will be stronger if you have an immigration attorney representing you.

Administrative Appeals

When an immigrant facing deportation or the DHS disagrees with the immigration court judge’s decision, they can appeal their case to the Board of Immigration Appeals (BIA). The appeal can lead to the reversal of the judge’s decision.

The BIA is an administrative body that has the authority to interpret federal immigration laws. You must submit an appeal to the BIA within 30 days of the immigration judge’s decision in your case.

If you disagree with the BIA ruling, you may appeal to a federal court. A petition for review must be filed with the appropriate U.S. Court of Appeals within 30 days of the date of the BIA’s final decision. The federal courts of appeals can rule on specific appeals of BIA decisions.

The process of filing a petition for judicial review is very complex. Legal counsel can explain the process and help you protect your immigrant rights. You should contact a local immigration attorney as soon as possible to talk about your case.