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Registered Users (C)
FORMS OF RELIEF FROM DEPORTATION
212(h) Waiver
If your criminal conviction falls under the CIMT or prostitution ground of inadmissibility or if you have a single marijuana possession conviction involving less than 30 gms of marijuana, you may be eligible for a waiver pursuant to Section 212(h) of the INA. To be eligible for this waiver you must meet the following criteria:
• You have not been convicted of a drug offense (except for one time simple possession of 30 gms of marihuana);
• If you committed your crime more than 15 years ago if your crime was prostitution, you will need to show that you are rehabilitated;
• If your crime was committed less than 15 years ago and it did not involve prostitution, you will need to show that you have a spouse, parent, son or daughter who is a United States Citizen or a lawful permanent resident, and denial of your admission would result in extreme hardship to your qualifying relative.
• If you are an LPR you must have lived in the United States for 7 years before your immigration case started; You cannot apply for a 212(h) waiver if you are a lawful permanent resident and have been convicted of an aggravated felony. Note, however, that this provision applies only to legal permanent residences. A person who overstayed his or her visa or parolees may still apply for adjustment of status with a 212(h) waiver.
FORMS OF RELIEF FROM DEPORTATION
Asylum
This form of relief is given to persons who have a “well founded fear” of returning to their country for certain reasons. The criteria’s for asylum are:
• That you are unable or unwilling to return to your country because you have been persecuted there or you have a well founded fear of persecution on account of your race, religion, nationality, membership in a particular social group, or political opinion;
• Generally, you must apply for asylum within one year of your last arrival unless there are changed circumstances.
• You cannot have been convicted of a “particularly serious crime.”
Withholding
Withholding of removal is very similar to asylum but much harder to get. Whereas asylum requires that you show a possibility of persecution, withholding requires that you show a probability of persecution. When the judge grants withholding of removal, he actually orders your removal but then orders that the removal be withheld until such time that it is safe for you to return to your country of citizenship. You will also be allowed to work legally within the United States. The criteria for withholding of removal are:
• Your life or freedom would be threatened because of race, religion, nationality, membership in a particular social group, or political opinion; and
• You have not been convicted of a particularly serious crime.
Convention Against Torture (CAT)
Pursuant to an international treaty known as the Convention Against Torture, the United States is prohibited from returning anyone to a country where they may be subject to torture. In order to obtain this form of relief you must show that you would suffer severe pain and suffering, intentionally inflicted for an illicit purpose by or at the instigation of, or with the acquiescence of, a public official who has custody and control over you, and not arising out of a lawful sanction. You may qualify for “deferral” under CAT no matter what your criminal record.
FORMS OF RELIEF FROM DEPORTATION
Cancellation of Removal for Lawful Permanent residence
This form of discretionary relief is available to qualifying lawful permanent residents:
• You must have resided within the United States for 7 years continuously;
• You must have been an LPR for 5 years;
• You cannot have convicted of an aggravated felony; and
• Cannot be a terrorist, crewman or exchange student.
Cancellation of Removal for non lawful permanent residence
Cancellation of removal for non-permanent residents may be granted if the alien:
• Has been continuously present in the United States for 10 years,
• Has been a person of good moral character during the 10 years prior to your application;
• You show that you have not been absent from the United states for 90 days on one trip and a total of 180 days on two or more trips,
• Has not been convicted of an offense that would make him or her removable; and
• Demonstrates that removal would result in exceptional and extremely unusual hardship to his or her immediate family members (limited to the alien's spouse, parent, or child) who are either U.S. citizens or lawful permanent residents.
FORMS OF RELIEF FROM DEPORTATION
FAQ about Asylum
• Who is Eligible to Apply?
• Asylum may be granted to people who are arriving in or already physically present in the United States. You may apply for asylum regardless of your immigration status, whether you are in the United States legally or illegally.
• Can I Still Apply For Asylum Even If I Am Illegally in the United States?
• Yes, you may apply even if you are here illegally. You may apply for asylum regardless of your immigration status as long as you file your application within one year of your last arrival or demonstrate that you are eligible for an exception to that rule based on changed circumstances or extraordinary circumstances, and that you filed for asylum within a reasonable amount of time given those circumstances.
• Can I Apply For Asylum Even If I Was Convicted of a Crime?
• Yes, you may apply. However, you may be barred from being granted asylum depending on the crime. You must disclose any criminal history at your asylum interview. Failure to disclose such information may result in your asylum claim being referred to the Immigration Court, and possible fines or imprisonment for committing perjury.
• What About My Spouse and Children?
• You may ask to have included in your asylum decision your spouse and/or any children who are under the age of 21 and unmarried, if they are in the United States.
Once you are granted asylum, you may petition to bring your spouse and/or children (unmarried and under the age of 21 as of the date you filed the asylum application, as long as your asylum application was pending on or after August 6, 2002) to the United States or to allow those already here, who were not included in your asylum decision, to remain incident to your asylum status.
Appeals
There are different types of immigration appeals. It depends on what decision you are filing an appeal against. The appeal process in a very complicated process and usually requires an experienced attorney with appellant experience.
Should a petition or application be denied or revoked by the USCIS, in most cases you may appeal that decision to a higher authority. The Administrative Appeals Office ("AAO") has jurisdiction over 40 petitions and applications. If you receive a denial notice, it will advise you of your right to appeal, the correct appellate jurisdiction (AAO or BIA), and provide you with the appropriate appeal form and time limit.
There are strict deadlines that must be met to properly file an appeal. The appeal must be filed with the correct fee at the office that made the original decision. You may file a brief (explanation) in support of the appeal. After review, the appellate authority may agree with you and change the original decision, disagree with you and affirm the original decision, or send the matter back to the original office for further action.
In addition to the right to appeal (in which you ask a higher authority to review a denial), you may file a motion to reopen or a motion to reconsider with the office that made the unfavorable decision. By filing these motions, you may ask the office to reexamine or reconsider its decision. A motion to reopen must state the new facts that are to be provided in the reopened proceeding and must be accompanied by affidavits or other documentary evidence. A motion to reconsider must establish that the decision was based on an incorrect application of law or USCIS policy, and further establish that the decision was incorrect based on the evidence in the file at the time the decision was made. Any motion to reopen or reconsider must be filed with the correct fee within 30 days of the decision.
Should your appeal be denied by an immigration judge you have 30 days to file an appeal with the board of immigration appeals. Also an unfavorable decision from the board of immigration appeals must be appealed to the Federal Court of Appeals with jurisdiction over your case within 30 days.
With our firm, you will be represented and guided through the appeal process by an experienced appellate attorney who specializes in immigration law. Our firm will also keep you informed of any developments in your cases.
212(h) Waiver
If your criminal conviction falls under the CIMT or prostitution ground of inadmissibility or if you have a single marijuana possession conviction involving less than 30 gms of marijuana, you may be eligible for a waiver pursuant to Section 212(h) of the INA. To be eligible for this waiver you must meet the following criteria:
• You have not been convicted of a drug offense (except for one time simple possession of 30 gms of marihuana);
• If you committed your crime more than 15 years ago if your crime was prostitution, you will need to show that you are rehabilitated;
• If your crime was committed less than 15 years ago and it did not involve prostitution, you will need to show that you have a spouse, parent, son or daughter who is a United States Citizen or a lawful permanent resident, and denial of your admission would result in extreme hardship to your qualifying relative.
• If you are an LPR you must have lived in the United States for 7 years before your immigration case started; You cannot apply for a 212(h) waiver if you are a lawful permanent resident and have been convicted of an aggravated felony. Note, however, that this provision applies only to legal permanent residences. A person who overstayed his or her visa or parolees may still apply for adjustment of status with a 212(h) waiver.
FORMS OF RELIEF FROM DEPORTATION
Asylum
This form of relief is given to persons who have a “well founded fear” of returning to their country for certain reasons. The criteria’s for asylum are:
• That you are unable or unwilling to return to your country because you have been persecuted there or you have a well founded fear of persecution on account of your race, religion, nationality, membership in a particular social group, or political opinion;
• Generally, you must apply for asylum within one year of your last arrival unless there are changed circumstances.
• You cannot have been convicted of a “particularly serious crime.”
Withholding
Withholding of removal is very similar to asylum but much harder to get. Whereas asylum requires that you show a possibility of persecution, withholding requires that you show a probability of persecution. When the judge grants withholding of removal, he actually orders your removal but then orders that the removal be withheld until such time that it is safe for you to return to your country of citizenship. You will also be allowed to work legally within the United States. The criteria for withholding of removal are:
• Your life or freedom would be threatened because of race, religion, nationality, membership in a particular social group, or political opinion; and
• You have not been convicted of a particularly serious crime.
Convention Against Torture (CAT)
Pursuant to an international treaty known as the Convention Against Torture, the United States is prohibited from returning anyone to a country where they may be subject to torture. In order to obtain this form of relief you must show that you would suffer severe pain and suffering, intentionally inflicted for an illicit purpose by or at the instigation of, or with the acquiescence of, a public official who has custody and control over you, and not arising out of a lawful sanction. You may qualify for “deferral” under CAT no matter what your criminal record.
FORMS OF RELIEF FROM DEPORTATION
Cancellation of Removal for Lawful Permanent residence
This form of discretionary relief is available to qualifying lawful permanent residents:
• You must have resided within the United States for 7 years continuously;
• You must have been an LPR for 5 years;
• You cannot have convicted of an aggravated felony; and
• Cannot be a terrorist, crewman or exchange student.
Cancellation of Removal for non lawful permanent residence
Cancellation of removal for non-permanent residents may be granted if the alien:
• Has been continuously present in the United States for 10 years,
• Has been a person of good moral character during the 10 years prior to your application;
• You show that you have not been absent from the United states for 90 days on one trip and a total of 180 days on two or more trips,
• Has not been convicted of an offense that would make him or her removable; and
• Demonstrates that removal would result in exceptional and extremely unusual hardship to his or her immediate family members (limited to the alien's spouse, parent, or child) who are either U.S. citizens or lawful permanent residents.
FORMS OF RELIEF FROM DEPORTATION
FAQ about Asylum
• Who is Eligible to Apply?
• Asylum may be granted to people who are arriving in or already physically present in the United States. You may apply for asylum regardless of your immigration status, whether you are in the United States legally or illegally.
• Can I Still Apply For Asylum Even If I Am Illegally in the United States?
• Yes, you may apply even if you are here illegally. You may apply for asylum regardless of your immigration status as long as you file your application within one year of your last arrival or demonstrate that you are eligible for an exception to that rule based on changed circumstances or extraordinary circumstances, and that you filed for asylum within a reasonable amount of time given those circumstances.
• Can I Apply For Asylum Even If I Was Convicted of a Crime?
• Yes, you may apply. However, you may be barred from being granted asylum depending on the crime. You must disclose any criminal history at your asylum interview. Failure to disclose such information may result in your asylum claim being referred to the Immigration Court, and possible fines or imprisonment for committing perjury.
• What About My Spouse and Children?
• You may ask to have included in your asylum decision your spouse and/or any children who are under the age of 21 and unmarried, if they are in the United States.
Once you are granted asylum, you may petition to bring your spouse and/or children (unmarried and under the age of 21 as of the date you filed the asylum application, as long as your asylum application was pending on or after August 6, 2002) to the United States or to allow those already here, who were not included in your asylum decision, to remain incident to your asylum status.
Appeals
There are different types of immigration appeals. It depends on what decision you are filing an appeal against. The appeal process in a very complicated process and usually requires an experienced attorney with appellant experience.
Should a petition or application be denied or revoked by the USCIS, in most cases you may appeal that decision to a higher authority. The Administrative Appeals Office ("AAO") has jurisdiction over 40 petitions and applications. If you receive a denial notice, it will advise you of your right to appeal, the correct appellate jurisdiction (AAO or BIA), and provide you with the appropriate appeal form and time limit.
There are strict deadlines that must be met to properly file an appeal. The appeal must be filed with the correct fee at the office that made the original decision. You may file a brief (explanation) in support of the appeal. After review, the appellate authority may agree with you and change the original decision, disagree with you and affirm the original decision, or send the matter back to the original office for further action.
In addition to the right to appeal (in which you ask a higher authority to review a denial), you may file a motion to reopen or a motion to reconsider with the office that made the unfavorable decision. By filing these motions, you may ask the office to reexamine or reconsider its decision. A motion to reopen must state the new facts that are to be provided in the reopened proceeding and must be accompanied by affidavits or other documentary evidence. A motion to reconsider must establish that the decision was based on an incorrect application of law or USCIS policy, and further establish that the decision was incorrect based on the evidence in the file at the time the decision was made. Any motion to reopen or reconsider must be filed with the correct fee within 30 days of the decision.
Should your appeal be denied by an immigration judge you have 30 days to file an appeal with the board of immigration appeals. Also an unfavorable decision from the board of immigration appeals must be appealed to the Federal Court of Appeals with jurisdiction over your case within 30 days.
With our firm, you will be represented and guided through the appeal process by an experienced appellate attorney who specializes in immigration law. Our firm will also keep you informed of any developments in your cases.
