Relief From Removal

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Relief From Removal INA 240A

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The immigration laws do not require the removal of every deportable noncitizen. The law authorizes several forms of relief from removal. There are a number of reasons why these relief provisions exist.

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Balancing Factors (Lots of balancing in relief)

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The relief provisions reflect the philosophy that even serious misconduct must be weighed against other factors (such as long-term residence, an unusual degree of hardship, or the likelihood of persecution in a foreign country.)

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Prosecutorial Discretion

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Compared to relief from removal that results in permanent resident status, prosecutorial discretion confers benefits on a larger number of noncitizens… though in ways that are far less advantageous or desirable.

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Cancellation of Removal

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Cancellation for LPR's
Cancellation for nonpermanent residents

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Cancellation of removal for Permanent Residents (LPR's)
How it works.

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INA 240A(a), the USAG, typically acting through an immigration judge - may cancel the removal of a lawful permanent resident if that person meets the 3 statutory requirements

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3 Statutory Requirements for LPR Cancellation of Removal

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1. LPR for 5 or more years
2. Person has legally resided in the US continuously for at least 7 years (admitted with any legal status)
* "stop time rule" INA 340A(d)(1) states that the continuous residence stops when LPR is served with an NTA
3. LPR must not have been convicted of an aggravated felony

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Favorable Exercise of Discretion in Cancellation of Removal for LPR's

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The LPR must also establish that he or she warrants a favorable exercise of discretion.
1) In the landmark case of Matter of C-V-T (1998), BIA said that there is a flexible standard for determining who should be granted discretionary relief, and added that each case must be judged on its own merits
2) The BIA also said that the Immigration Judge should:
a) Review the record as a whole and
b) Must “balance the adverse factors evidencing the alien’s undesirability as a permanent resident with the social and humane considerations presented in his or her behalf to determine whether the granting of relief appears in the best interest of this country.” MUY IMPORTANTE SABER

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The Factors - Factors that HELP the respondent (considering favorable exercise of discretion in cancellation of removal for LPR's)
INA 240A(a)

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a) Family ties within the United States;
b) Residency of long duration in this country (particularly when the inception of residence occurred at a young age)
c) Evidence of hardship to the respondent and his/her family if deportation occurs;
d) Service the country’s armed forces
e) History of employment
f) The existence of property or business ties
g) Evidence of value and service to the community;
h) Proof of genuine rehabilitation if a criminal record exists
i) Other evidence attesting to a respondent’s good character, including letters of support in the record.
j) NOTE: the BIA and at least one court have found that positive equities that accrue after knowledge of potential deportation may be diminished.

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The Factors - Factors that HURT the respondent (considering favorable exercise of discretion in cancellation of removal for LPR's)

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a) The nature and underlying circumstances of the grounds of removal that are at issue;
b) The presence of additional significant violations of the country’s immigration laws
c) The existence of a criminal record and, if so, its nature, recency, and seriousness; and
d) Other evidence indicative of a respondent’s bad character or undesirability as a permanent resident of this country.

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Honesty towards the court

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The DOJ’s “immigration judge benchbook” indicates that the IJ can also consider whether the respondent was honest with the immigration court.

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Cancellation of removal for Nonpermanent Residents

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According to INA 240A(b)(1) The attorney general typically acting through an immigration judge may cancel the removal and adjust the status of a non-lawful permanent resident if that person meets 4 statutory requirements

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4 Statutory Requirements for Nonpermanent Residents Cancellation of Removal

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1. Physical Presence
2. Good Moral Character for 10 years
3. No disqualifying offense convictions
4. Removal would result in EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP to a USC or LPR

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1. Physical Presence

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i. The person has been physically present in the United States for a continuous period of not less than 10 years immediately proceeding the date of such application
1) According to the stop time rule in INA 240A(d)(1), continuous presence is deemed to end
a) When the person is served with an NTA OR
b) When the person commits ta certain kind of crime, whichever is earlier
2) According to INA 240A(d)(2), a person shall be considered to have failed to maintain continuous physical presence in the United States if he or she has departed from the United States
a) For any period in excess of 90 days OR
b) For any periods in the aggregate exceeding 180 days
3) Note: In order to establish the requisite continuous physical presence in the United States, respondents put forth evidence such as a testimony, affidavits, and other documents (e.g. school records, employment records, etc.)
4) Also, the DHS sometime concedes that the respondent has met the continuous physical presence requirement.

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2. Good Moral Character For 10 Years

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ii. The person has been a person of good moral character during such period (the 10 years immediately preceding the date of the application.)
1) The BIA has held the “good moral character does not mean moral excellence and that it is not destroyed by a single incident.”
2) INA 101(f) lists some person who are not of “good moral character” including but not limited to:
a) A habitual drunkard
b) Someone convicted of a CIMT
c) Someone whose income is derived principally from illegal gambling activities
d) That said, INA 101(f) does not actually define “good moral character”
3) Ultimately, an immigration judge may consider various factors in determining whether a respondent has god moral character, this can even include things like dependability in the workplace, a respectful attitude toward others, and a commitment to his or her spouse and children.

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3. No disqualifying offense convictions

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iii. The person has not been convicted of a disqualifying offense (under INA 212(a)(2), 237(a)(2), or 237 (a)(3)
INA 212(a)(2) - Criminal and Related Grounds - Inadmissibility
237(a)(2) - Criminal Offenses under "DEPORTABLE ALIENS"
237(a)(3) - Failure to register and falsification of documents

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4. The person establishes that removal would result in EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP to his or her spouse, parent, or child, who is a United States citizen or an LPR

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1. Must provide evidence of harm to a qualifying relative that is “substantially beyond that which ordinarily would be expected to result from the alien’s deportation.”
2. A showing that an alien’s USC child would merely fare less well in the alien’s country of nationality than in the US does not establish the requisite hardship and thus would not support a grant of relief under this provision.
3. The hardship standard is not so restrictive that only a handful of applicants will qualify for relief
4. The respondent need not show that the hardship would be unconscionable
5. Hardship Determination (separate flashcard)
6. Hardship case ultimately succeeds or fails on its own merits and on the particular facts presented
7. IJ will Consider Numerous Factors (separate flashcard)

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5. Hardship Determination under EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP

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5) In making the hardship determination, an immigration judge will typically compare the facts of the case at hand with the three landmark BIA cases of
a) Matter of Monreal (2001) (no requisite hardship)
b) Matter of Andazola (2002) (no requisite hardship) and
c) Matter of Gonzalez Recinas (2002) (requisite hardship)
d) Recinas case

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Exceptional and extremely unusual hardship FACTORS

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These factors include, but are not limited to, the following:
a) Family ties in the United States and abroad
b) Length of residency in the United States
c) Ties to the community in the United States
d) Health and medical conditions
e) Age of the relevant individuals
f) The financial situation of the family
g) The economic and political conditions in the country of removal; and
h) The educational and employment opportunities in the country of removal.

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EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP only matters to the extent that

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they affect the hardship to the qualifying relative(s) who are US Citizens and LPR’s

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Favorable Exercise of Discretion in Cancellation of Removal for NONPERMANENT RESIDENTS

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In addition to these four statutory requirements, the person must also establish that he or she warrants a favorable exercise of discretion (note that you need not consider the Matter of C-V-T factors here).

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Voluntary Departure INA 240B

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Two Main Types - INA 240B
1. Voluntary Departure in lieu of removal proceedings or during proceedings
AND
2. Voluntary Departure at the conclusion of proceedings

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VD at the Conclusion of Removal Proceedings
INA 240(b)(1)

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AG – typically acting through an immigration judge – may grant voluntary departure in lieu of removal

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Burden in VD actions

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The alien bears the burden to establish both that
1) He is eligible for relief AND
2) He merits a favorable exercise of discretion

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To establish eligibility, the alien must prove that he meets 4 statutory requirements

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1. Physically present in the US for 1 year immediately preceding NTA
2. Has been person of good moral character for at least 5 years immediately preceding application for VD
3. Show that he is not removable for Aggravated felony (INA 237(a)(2)(A)(iii) OR INA 237 (a)(4)(B) security grounds
4. Show that he has the means to depart.

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Proving Means to Depart under VD

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4) Must show by clear and convincing evidence that he has the means to depart the United States and the intention to do so.
a) According to federal regulations, the alien must also possess valid travel documents to assure lawful entry into the relevant country see 8CFR 1240.26(c)(2)
b) According to INA 240B(b)(3), the alien must also post a voluntary departure bond, “in an amount necessary to ensure that the alien will depart.”
c) This amount must be at least $500 and must be posted within 5 days of the voluntary departure order

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Favorable Exercise of Discretion for VD

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In addition to these four statutory requirements, the alien must also establish that he or she warrants a favorable exercise of discretion.
1) The BIA has said that, in order to make this decision, the IJ must weigh relevant positive and negative factors, including the person’s criminal history, among other factors.
2) Ultimately, if the alien is statutorily eligible and has established that he warrants a favorable exercise of discretion, the court may grant voluntary departure for a period of up to 60 days.

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Failure to depart after granted VD

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Could Result In:
1. Be removed from the United States
2. Be required to pay a civil penalty of $1,000-$5,000; and
3. Become ineligible for voluntary departure, cancellation of removal, and any change or adjustment of status for 10 years to come.

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Benefits of Voluntary Departure

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1. Avoid stigma of removal
2. Not automatically barred from readmission
* No set 10 year bar