Legal Protection Against Deportation

When it is determined that an immigrant should be removed from the country, they can request certain types of protection to avoid having to leave the United States.

These types of protection generally fall into two categories:

• Discretionary protection
• Administrative or judicial protection

Below is a list of the types of relief available in both categories.

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 a judge has the discretion to grant you. To receive this, you will need to prove that you have been residing in the U.S. for a certain length of time and are a person of good moral character. This essentially means that you have a clean criminal record.

Cancellation of Deportation

For legal permanent residents (green card holders), cancellation of your removal can be granted 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 a serious or violent crime

You could receive a cancellation of deportation if you are a non-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
• Have not committed a crime that could lead to deportation
• Can show that deportation would cause extreme and unusual hardship to your spouse or children, provided they are U.S. citizens or lawful permanent residents

Asylum

Under immigration law, an immigrant who qualifies as a refugee can receive asylum. An asylum seeker must demonstrate the inability to return to their home country due to:

• Past persecution
• A well-founded fear of future persecution based on their race, religion, nationality, membership in a particular social group, 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.”

The request for adjustment of status is generally made by your spouse, family member, or employer. These people would need to be U.S. citizens to make this request for you.

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 in the ordered 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

Administrative and judicial relief forms are available after your deportation hearings end. These forms of protection are similar to an appeal since 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 Department of Homeland Security (DHS) disagrees with an immigration judge’s decision, they can appeal 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. Appeals must be submitted to the BIA within 30 days of the decision of the immigration judge in your case.

If you disagree with the BIA ruling, you may appeal to a federal court. The federal courts of appeal are authorized to rule on specific appeals of BIA decisions.

You have 30 days from the date of a final deportation decision to file your appeal. The process of filing a petition for judicial review is very complex, and you should consult with a qualified immigration attorney as soon as possible to discuss your case.