How to stop removal proceedings

In certain cases, knowing how to stop removal proceedings could help immigrants evaluate their possible options in these types of scenarios.

Receiving a removal order can be stressful, but it does not mean that all is lost. Therefore, if you are involved in this scenario and want to avoid deportation, our immigration lawyers in New Jersey can help you. Call us immediately, as time is a determining factor in these cases.

How to stop removal proceedings from the United States in 2024 and the different types of paths and reliefs available

There are several paths to stop removal proceedings in the United States. Among them are the following:

Through adjustment of status from nonimmigrant to immigrant

One of the most common reasons why aliens end up in immigration court is because they do not have their documents up to date. An example would be foreign students who have forgotten to extend their F-1 student visa.

In any case, depending on certain factors and the different types of american visas available, it is possible to make an adjustment of status in the United States. This will allow individuals to change their status from nonimmigrant to immigrant.

Asylum or Withholding of Removal to stop removal proceedings

The asylum process in the USA can be decisive, since this immigration relief could help individuals who:

1. Have faced, or are likely to face, persecution in their home country, and
2. Want to get a Green Card. If asylum is granted, immigrants will eventually become lawful permanent residents, as long as they meet the requirements to do so.

Asylum

Foreigners may qualify for asylum if they prove that they have been victims of persecution or have a “credible fear” of persecution in their country. This will be based on their:

• Nationality,
• Political ideologies,
• Religion,
• Membership in a particular social group, or
• Race.

It should be noted that asylum assistance is discretionary and can only be requested within one year of arrival in the United States. If asylum is granted, the immigrant may have the right to the following benefits:

• Work legally,
• Travel internationally,
• Grant which covers the spouse and minor children if they are present in the US, and
• Obtaining permanent residency, which would eventually lead to obtaining US citizenship. 

Despite all this, immigrants are not eligible for asylum if they were convicted of a felony. In addition; Although asylum does not expire, it can be terminated. This occurs if:

1. The US government determines that the fear of persecution is no longer well-founded due to a crucial change in the country of origin, or
2. The immigrants commit a crime that makes them inadmissible to the US.

For more information about asylum, we invite you to read our related blogs on: “Asylum based on domestic violence” and “The asylum clock”.

Withholding of removal

Withholding of removal is similar to asylum, but has two relevant advantages:

1. It does not have the 1-year application limitation, and
2. The immigration judge must grant withholding or removal if the applicant meets the requirements.

Despite these advantages, a greater demonstration of danger is required than an asylum application. In addition, the foreigners must demonstrate a “very clear probability” that they will suffer future persecution if they return to their country of origin.

As with asylum, immigrants will not be eligible for this relief if they have been convicted of a felony. Additionally, this immigration relief does not allow immigrants to:

• Become permanent residents or American citizens,
• Apply for a derivative beneficiary status petition for immediate family members, and
• Travel internationally.

Did you suffer a conviction? You may be interested in our blog on post-conviction relief for immigration purposes.

cancellation of removal to stop removal proceedings

Cancellation of removal is another form of immigration relief from deportation and is only available to immigrants who have:

1. Lived legally in the United States for a good number of years, and
2. Strong ties with society.

The specific qualifications for this relief depend on whether or not the alien is a:

• Battered spouse or child,
• Lawful permanent resident, 
• Non-permanent resident. 

We emphasize that immigrants must demonstrate that they truly deserve to stay in the U.S. to qualify for cancellation of removal. In deciding whether to cancel the removal, the court will consider that the positive factors outweigh the negative ones. Knowing this, we will detail each classification:

Cancellation for battered spouse and children

There is a special form of cancellation of removal available under the Violence Against Women Act (VAWA). VAWA expungement allows certain individuals of either gender, victims of extreme assault or cruelty, to remain in the US.

To qualify for this immigration relief, the victim must demonstrate the following:

• Has a good moral character,
• It is not inadmissible to the United States,
• You would suffer extreme hardship if you are not allowed to remain in the US.
• The abuser is an American citizen or Green Card holder, and
• Has been physically present in the US for 3 years and continuously.

For more information regarding VAWA relief, read our publication: “VAWA visa”. 

Cancellation of removal for lawful permanent residents

For Green Card holders to qualify for cancellation of removal, they must demonstrate that they:

1. Had the Green Card for at least 5 years,
2. Haven’t committed aggravated felonies, and
3. Have lived in the US continuously for 7 years.

If cancellation of removal is granted, you will then be able to remain in the US and as a lawful permanent resident.

Cancellation of removal for non-permanent residents

Non-permanent residents may qualify for cancellation of removal if the result of this removal would lead to serious hardship for a close family member who is:

1. Lawful permanent resident, or
2. US citizen.

Therefore, the immigrants will have to demonstrate that:

• They have been physically present in the United States for 10 years or more,
• They were not convicted of an inadmissible crime,
• Deportation would cause exceptional or extremely unusual hardship for a spouse, parent, or child who is a U.S. citizen or Green Card holder, and
• They have been individuals of good moral character throughout the stated 10-year period.

We point out that economic difficulties will not count as “exceptional or extremely unusual hardship”.For this, an example would be moving to a country that does not have the availability of medical care to treat a serious illness.

If cancellation of deportation is granted, immigrants will be able to adjust their status and obtain a Green Card.

Stop removal proceedings Through CAT Protection for national foreigners who suffer torture

Foreigners who suffer scenarios of torture in their country of origin may have the right to immigration relief under the United Nations Convention Against Torture (CAT).

Under CAT, the U.S. government cannot return an immigrant to a country where they are more likely to suffer torture by:

1. The government of that country, or
2. A group that the government cannot control.

We highlight that CAT protection offers fewer benefits than political asylum. As if that were not enough, it does not prevent the US government from expelling the immigrant to a third country that is “safe” if one of them is willing to accept him.

It is often a good idea to apply for asylum, cancellation of removal and CAT protection at the same time.

adjustment of status with 212(h) waiver

Green Card holders who are in deportation proceedings for certain types of convictions can obtain a discretionary immigration waiver and adjust status. This type of waiver is established in section 212(h) of the Immigration and Nationality Act (INA).

Crimes that can be forgiven under the 212(h) waiver include:

• Simple possession of 30 grams or less of marijuana,
• Prostitution and crimes related to this topic,

• Crimes involving mortal turpitude, also known as CIMT,
• Multiple convictions for 2 or more crimes,
• Serious criminal activity in which immunity from prosecution is reported.

It is not possible to waive aggravated felonies and crimes that involve murder or torture. Additionally, to be eligible for this relief, the foreigner must:

1. Have resided continuously in the US for 7 years.
2. Not have been convicted of murder or criminal acts involving torture or conspiracy, and
3. Not have been convicted of a felony.

As if that were not enough, the immigrant must belong to one of the following 3 categories:

1. Having been rehabilitated for 15 years,
2. Have been a victim of domestic violence by any American citizen or lawful permanent resident, or
3. Possess a close relative who is an American citizen or Green Card holder who would suffer extreme hardship if the foreigner were deported.

212(h) immigration waiver after 15 years of rehabilitation

To obtain a 15-year 212(h) waiver, an immigrant will have to demonstrate the following:

• It has been rehabilitated,
• The activities for which it was inadmissible, took place more than 15 years ago, and
• Allowing their stay in the country would not be contrary to the national welfare or security of the United States.

212(h) Waiver Based on Extreme Hardship

This type of waiver may be granted to aliens when removal would result in extreme hardship for their U.S. citizen or resident spouse, parents, or children. Among the factors the immigration judge may consider include:

• Availability of adequate medical care for family members in the country where the immigrant is transferred,
• Financial impact of the immigrant’s departure from the US,
• Conditions in the immigrant’s country of origin, and
• Family ties the foreign national has both inside and outside the US.

Waiver of a battered spouse or child

A 212(h) waiver may be granted to an alien who has suffered some type of abuse by a U.S. citizen or Green Card holder. However, the abuser must be a:

1. Spouse,
2. Son, or
3. Father.

To qualify for this waiver, the immigrant must have good moral character and have resided with the abuser. Although this waiver is an immigration relief for victims of abuse, it is most advisable to speak with one of our immigration attorneys.

Our attorney Carolina T. Curbelo has more than 10 years of experience in cases involving the T visa, VAWA, and cancellation of removal among others.

You are not removable as charged

The United States Department of Homeland Security (DHS), you must prove that an immigrant is subject to deportation in a way:

1. Mandatory, or
2. Discretionary.

Therefore, the reasons why an immigrant may not be deported from the United States include; but are not limited to:

• DHS did not correctly apply legal precedents,
• The immigrant’s criminal history presents uncertainty as to whether the crime fits the category of deportable crime or inadmissible crime, or
• The immigrant is an American citizen.

In fact, even if the foreign national is deported, some type of mandatory or discretionary relief for their removal may be available to them.

Notice To Appear

If an error is found on the Notice to Appear in Immigration Court, this may serve as a possible defense in a deportation case. These errors can include:

1. The notice was sent to the wrong address, or
2. The notice was sent only to the immigrant’s attorney and not to the immigrant as such.

We recommend that all those interested read our blog: “How to find out if I have a deportation order” since the blog will help them understand what to do in such cases.

NACARA Program

The Nicaragua Adjustment Act and Aid to Central America, or NACARA Program, is a law that allows beneficiaries to suspend their deportation proceedings. These beneficiaries had to be granted asylum in the US from countries such as:

• El Salvador,
• Guatemala,
• Cuba, and
• The countries of the former Soviet bloc.

This relief generally applies to refugees who qualified in the following requirements:

1. Entering the United States before 1991,
2. Filed timely for asylum and
3. If you are Salvadoran or Guatemalan, you must have registered to receive benefits under the terms of the class action settlement agreed upon in the ABC settlement.

Typically, immigrants with felony convictions do not qualify for relief under NACARA 203. However, individuals who have been battered or subjected to extreme cruelty could still qualify for this immigration relief.

The immigration judge could grant NACARA relief if the immigrant meets the following requirements:

• Continued physical presence in the US,
• Deserves the benefit,
• Has a good moral character,
• Is free from any prior conviction for an aggravated felony,
• Deportation would result in extreme hardship for you, your spouse, your children, or parents who are U.S. citizens or permanent residents.

Stop removal proceedings Through T visas and U visas for victims of abuse

T visas and U visas are only available to victims of human smuggling and trafficking or serious crimes, such as domestic violence and sexual assault. However, victims usually have to cooperate with authorities to investigate and prosecute such crimes.

T visas will be available to immigrants facing deportation if:

1. They are in the US as a result of human trafficking, and
2. Their deportation from the US would involve serious extreme hardship and unusual or extreme harm.

On the other hand, immigrants who were already in the United States when they were victims of a serious crime in the past, they can apply for the U visa. Applicants for this visa must demonstrate that they have suffered substantial physical or mental abuse due to the crime suffered in the past.

Typically, beneficiaries of these visas will be able to stay and work in the US for 4 years. If you meet certain additional conditions, it is possible to apply for a Green Card. However, these visas are “Non-Immigrant” visas, which do not guarantee permanent residence.

Under some private immigration bills 

Any member of the US Congress can introduce private immigration bills to prevent the deportation of an immigrant or groups of immigrants. It is generally a last resort for immigrants who have exhausted other available resources.

These bills are passed only when there are extreme hardships for immigrants or their immediate family members. Despite this, immigrants with criminal records will not be able to qualify for such reliefs.

When using the resource of voluntary departure

Voluntary departure allows an immigrant to avoid having a history of deportation. For example, the great difficulties in legally returning to the US and facing several severe penalties for illegal re-entry, such as 20 years in prison.

In addition, foreigners who voluntarily leave the United States will have more time to settle their affairs, compared to deportation.

Through 601A waiver of inadmissibility

Individuals who are illegally in the US can fight deportation through a 601A immigration waiver. To qualify for this “pardon”, immigrants must demonstrate that:

• The immigrant is married to a lawful permanent resident or an American citizen,
• The immigrant’s only infraction is illegal presence, and
• Deportation would lead to hardship for the spouse or children.

If the immigration judge grants this waiver, the immigrant will be able to leave the US and have an immigrant visa interview at an American consulate or embassy.

212(c) Waiver

Lawful permanent residents who pleaded guilty or were convicted of a crime before April 1, 1997, may be eligible for discretionary relief. This will be under the former section 212(c) of the INA.

The necessary requirements for this waiver include:

• If convicted after April 24, 1996, the immigrant will have to prove that he or she was not convicted of any serious or drug crime,
• The immigrant is not in the US illegally due to a prior immigration crime,
• The immigrant must have pleaded guilty before April 1, 1997,
• If the immigrant was briefly outside the US, they will have to return to legal residence for at least 7 consecutive years,
• The foreign national must not have been convicted of a firearm crime affecting immigration or an aggravated felony with a total sentence of 5 years or more,
• Not be subject to deportation for acts of terrorism or U.S. National Security concerns.

If the 212(c) waiver is granted, the immigrants will get their Green Card again and their documents will be returned. For example, the passport.

Through DACA Deferred Action / “Dreamer”

Deferred Action for Childhood Arrivals (DACA) is a discretionary program that allows immigrants who were brought to the U.S. as children to apply for:

1. A work authorization, and
2. Two years of protection against deportation.

To be eligible, foreigners must meet the DACA application requirements, which include:

• Continuously residing in the US since June 15, 2010,
• Being physically present in the US since June 15, 2012,
• Having entered the US before turning 16,
• Not having been convicted of any felony or being involved in one,
• Be enrolled in school, have graduated, or have earned a GED or other equivalent certificate from a high school. You may also qualify if you are a veteran honorably discharged from the US Armed Forces or the Coast Guard.

This program does not offer immigrants a Green Card or a path to citizenship, but it does allow them to temporarily avoid deportation. This allows the immigrant to remain in the United States for a certain time.

Stop removal proceedings by the use of a motion to reconsider or reopen

Immigrants may be able to request a motion to reconsider or reopen the decision of an immigration judge or the BIA itself. However, generally, only one motion for reconsideration and one motion for reopening can be filed.

• Motions to reopen often introduce new and additional evidence or facts that were not available during the original hearing. These motions must be filed within 90 days of the deportation order.
• On the other hand, motions for reconsideration usually reexamine the decision, usually due to mistakes in the factual events that occurred. This must be filed within 30 days of the removal order.

Under Prosecutorial Discretion

U.S. government prosecutors have broad prosecutorial discretion to dismiss certain cases involving deportation. However, the benefits granted in these cases may be limited.

As if that were not enough, there are no strict rules or regulations about when prosecutors can exercise their discretion.

Through an administrative appeal

The Board of Immigration Appeals (BIA) hears appeals of decisions made by DHS and immigration judges.

The immigrant and DHS can appeal an immigration judge’s decision, but the BIA must receive the appeal within 30 days of the decision. Additionally, BIA may dismiss or admit the appeal. Therefore, BIA:

1. Could send the case back to the immigration judge, or
2. Send it to the attorney general.

Either way, the BIA’s decision could override the decision of the immigration judge and/or DHS.

When can I return to the United States after being deported?

The time range can vary from 5 years to 10 and even never having the option of ever returning to the US. Additionally, if you attempt to return illegally after being deported you risk suffering a 20-year entry penalty. illegal and even a permanent ban on entering again.

If I have a deportation order, will I still be eligible for any immigration relief?

The law allows aliens the opportunity to have their deportation order reviewed and in some cases, vacated.

If you have an approved visa petition, then you can submit Form I-212, application for permission to reapply for readmission to the US after being deported.

If I am in removal proceedings, can I renew my work permit?

In some scenarios, it is possible to renew a work permit in the US even if you are in removal proceedings. However, in order to do this, the immigrant must:

• Have a parole or entry permit for the purpose of requesting asylum,
• Have a pending asylum application, for which you were previously issued an employment permit,
• Have a resident petition through employment, or
• Be eligible for Temporary Protected Status (TPS).

Find out what TPS status is in our blog.

Can I obtain legal status in the United States if I have a US citizen child?

It is possible to stop potential deportation and removal proceedings for unlawful presence by obtaining legal status. To do this, it can be done under the following circumstances:

1. If a son or daughter is over 21 years old and has the capacity to support the immigrant, then the immigrant can can file a petition for relatives by means of US family-based immigration, or
2. If you have been in the US for 10 years and can demonstrate that your childs would suffer exceptional or extremely unusual hardship if deported to their country of origin. If so, it is very likely that you will be approved for cancellation of removal.

Our blog on U. S. citizen petition for parents may be of your interest.

How can our lawyers help you stop removal proceedings in the United States?

As we have seen in this blog, if an immigrant has been issued a removal order, they may still have options available. While it may not be easy to stop removal proceedings from the United States, a good, experienced attorney will be able to help you.

At Curbelo Law, we have two of the most experienced attorneys in these immigration scenarios, where they can give you the best possible opportunity for success.

If you have a removal order and want to stop the deportation process, please do not hesitate to contact us immediately. Remember, time is key to achieving a favorable result.