February 01, 2012
Being placed under removal proceedings is probably one of the hardest things that any immigrant might have to experience in the United States. However, even at this stage several types of relief are available to prevent an individual’s deportation.
Some remedies, for example, adjustment of status, cancellation of removal, or asylum and withholding of removal, either grant or offer a path to permanent residence. If the respondent alien is not eligible for these forms of relief, he should certainly consider other options before he loses all hope and gives up.
Deferred action is one of the remedies available to an alien under deportation which is granted for humanitarian reasons. It is a form of relief granted not by the judge but in the exercise of prosecutorial discretion by the district director with the approval of the regional commissioner.
The alien must demonstrate that his removal is not a priority of the government. Some of the factors to be considered include the likelihood of ultimately removing the alien; the presence of sympathetic factors; likelihood of a large amount of adverse publicity because of those sympathetic factors; the alien’s continued presence is desired by law enforcement for an ongoing investigation or review; and whether the alien is a member of a class that is a high enforcement priority.
A grant of deferred action means that the government would not take steps to remove the alien from the United States. He becomes eligible for employment authorization in the meantime. However, deferred action is only a temporary stay of removal and does not confer any positive immigration status.
Another type of relief that may be available is voluntary departure. This allows an alien who would otherwise be deported to leave the U.S. at his own expense but within the time period ordered by the judge, which can be as long as 120 days if requested at the beginning of the proceedings.
An alien who is ordered removed may be barred from reentering the U.S. for at least several years, but one who voluntarily departs is not subject to the penalties of removal. Voluntary departure may be requested before or at the master calendar hearing, after the individual hearing, or at the conclusion of the proceedings.
If the alien has a matter pending with the USCIS, typically an I-130, I-140 or I-360 petition, the judge may order an administrative closure of the removal proceedings. This is to allow the USCIS to adjudicate the petition since the judge does not have jurisdiction over it. If the petition is approved by USCIS, the alien may apply for permanent resident status before the immigration judge.
A little-known type of relief, perhaps because it is rarely resorted to, is the private bill. It involves convincing a U.S. Senator or Representative to sponsor a bill providing one with permanent residence, and thereafter to have that bill passed in both houses of Congress and then signed by the President. As one can imagine, getting a private bill passed is nothing short of a miracle, but miracles do happen: in the 108th Congress, three private bills were passed.
The rules of both houses require the alien to establish particularly compelling circumstances and hardship. Even the mere sponsorship of a bill by a member of Congress already gives the alien relief. This is what happened to one of our clients years ago. The pendency of the private bill enabled him to remain in the U.S. until he obtained his employment-based green card.
Deferred enforced departure (DED) is a relief given to nationals of certain countries as determined by the President in his power to conduct foreign relations. If an alien is covered and is eligible for a DED, his removal is temporarily stayed and he may get employment authorization and advance parole.