Table of Contents
- T Nonimmigrant Visa Relief
- T Visa Adjustment of Status
- U Nonimmigrant Visa
- U Visa Adjustment of Status
- Special Immigrant Juvenile
- Asylum, Withholding of Removal, and Convention Against Torture (CAT).
- Relief Under the United Nations Convention Against Torture (CAT)
- When All Else Fails
- Deferred Enforced Departure
- Voluntary Departure
- Administrative Closure
- Private Bill
- Prosecutorial Discretion
- Deferred Action for Childhood Arrivals (DACA)
- Trying to Return to the United States
Additional forms of relief include T and U nonimmigrant visa relief for victims of trafficking and other specified crimes who provide assistance to those investigating criminal activity. Both visas may ultimately lead to permanent resident status, i.e., green cards.
T Nonimmigrant Visa Relief
The purpose of the T nonimmigrant visa is to provide trafficking victims a legal avenue for remaining in the United States while assisting in the investigation and prosecution of traffickers.
An application for a T nonimmigrant visa is filed with USCIS. Eligibility requires a showing of the following:
- One is a victim of a “severe form of trafficking;”
- Physical presence in the United States or at a port of entry due to trafficking; c. Compliance with any reasonable requests for assistance in investigating or prosecuting trafficking; and
- Extreme hardship involving unusual and severe harm if removed from the United States.
There are 5,000 T nonimmigrant visas available on an annual basis. Duration of T status is typically four years. T status allows for employment authorization. A respondent in removal proceedings qualifying for the T visa should seek administrative closure of the hearing during the pendency of the application with USCIS.
T Visa Adjustment of Status
Eligibility for T adjustment requires a showing of the following:
- Lawful admission to the United States as a T nonimmigrant and continued T status at the time of filing the application for adjustment;
- Continuous presence in the United States of at least three years since admission as a T nonimmigrant or continuous presence during the investigation or prosecution;
- Admissible at the time of adjustment of status or otherwise received a waiver from USCIS for any applicable ground of inadmissibility;
- Good moral character; and
- Continued compliance with any reasonable request for assistance in an ongoing investigation or prosecution, or extreme hardship upon removal from the United States.
An eligible respondent should seek adjustment of status before the IJ or termination of proceedings to pursue adjustment before USCIS.
U Nonimmigrant Visa
The purpose of the U visa is to provide investigators and prosecutors assistance in pursuing those committing crimes of domestic violence, sexual assault, and trafficking of foreign nationals while also protecting the victims of those crimes.
To qualify, the U visa applicant must:
- Show substantial suffering as a result of physical or mental abuse arising from certain criminal activities;
- Possess information about the criminal activity;
- Have been, or is being, or will be helpful or is likely to be helpful to federal, state,or local authorities in the investigation or prosecution of the qualifying criminal
- Show that the criminal activity violated the laws of the United States or occurred in the United States or U.S. territories.
There are 10,000 U nonimmigrant visas available on an annual basis. This status usually lasts for four years unless there are exceptional circumstances. Employment authorization is available to U visa holders.
A respondent in removal proceedings should seek administrative closure if one has filed or about to file for U visa status with USCIS.
U Visa Adjustment of Status
Eligibility for U visa adjustment is based on the following requirements:
- Lawful admission to the United States as a U nonimmigrant and continuation of that status;
- Continuous physical presence in the United States for at least three years since obtaining U nonimmigrant visa status; and
- No unreasonable refusals to provide assistance to the authorities in their federal, state, or local investigation or prosecution.
A respondent who is eligible for adjustment of status as a U visa holder should seek adjustment of status before the immigration judge or termination of proceedings to seek relief before USCIS.
Special Immigrant Juvenile
Special immigrant juvenile status is a form of relief accorded a child found by a state court, authorized to make decisions about children and their care, to have been abused, neglected, or abandoned by his/her parents and deemed dependent on the court.
Custody of the child may be held by an agency, department of the state, or an individual/entity appointed by the court after it determines that family reunification with one or both parents is not viable, and, it is not in the child’s best interest to return to the country of nationality or last habitual residence.
A child may file for special immigrant juvenile relief if:
- Under the age of 21 at the time of filing;
- Unmarried and remains so throughout the process;
- A state court order deeming the child a dependent on the court has been issued;
- The child is physically present in the United States;
- The petition must be filed with and adjudicated by USCIS and accompanied by an application for permanent residence if the child is not in removal proceedings.
- If the child is in removal proceedings, a request for administrative closure or a continuance should be made to allow for USCIS processing of the petition. Assuming a favorable decision on the petition has been made, a request to recalendar the case for an individual hearing or termination of proceedings should be made in order to pursue adjustment of status to permanent residence.
Asylum, Withholding of Removal, and Convention Against Torture (CAT).
For those individuals ineligible for adjustment of status who fear persecution or torture upon return to their home countries, relief through asylum, withholding of removal, and/or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (CAT) may be available. Each form of relief is confidential and has different requirements and burdens of proof.
Asylum is available to those in removal proceedings regardless of manner of entry, including those who entered without inspection (EWI). It is a form of discretionary relief available to one who is physically present in the United States (or at a land border or port of entry who has established a “credible fear”) who qualifies as a “refugee.” That means one who is unable or unwilling to return to his or her country of nationality because of “past persecution” or a “well-founded fear of persecution” on account of race, religion, nationality, political opinion, or membership in a particular social group.
Withholding of Removal
Withholding of removal is a mandatory form of relief available only by application to the immigration court. It is available to one fleeing persecution from his or her country of nationality and is based on the same grounds as that for political asylum (i.e., race, religion, nationality, membership in a social group, or political opinion), except it requires a higher burden of proof than that of asylum.
An applicant for withholding of removal must show a clear probability of persecution in order to be granted withholding of removal. In other words, it is “more likely than not” (i.e., a greater than 50 percent chance) that one will be persecuted by the government or a group the government cannot or will not control.
A grant of withholding of removal is less desirable than a grant of asylum for several reasons. First, although one is guaranteed safe haven from the country of claimed persecution, the IJ must issue an order of removal that provides DHS the option to seek removal to a third country at a later time if and when it becomes available. Second, a grant of withholding of removal does not serve as the basis for a future application for permanent residence, i.e., a green card.
While employment authorization is available, one granted withholding of removal may not travel outside the United States. Moreover, a person granted withholding of removal may not petition for derivative status to be given to immediate family members.
Withholding of removal should be pursued by those ineligible for asylum on grounds such as: (1) they missed the one year filing deadline without “changed” or “extraordinary” circumstances to explain the delay; (2) they have been convicted of an aggravated felony; or (3) certain negative factors exist (e.g., a lengthy criminal history) which make a discretionary grant of asylum unlikely. As with asylum, there are certain acts barring one from eligibility. Persons engaged in the persecution of others are ineligible for withholding of removal, as are those who have been convicted of a “particularly serious crime.”
Relief Under the United Nations Convention Against Torture (CAT)
Under CAT, a person may not be returned to a country where there are substantial grounds to believe that he or she will be tortured. In other words, it must be “more likely than not” that he or she will be tortured.
Torture is defined as severe pain or suffering (physical or mental) that is intentionally inflicted “by or at the instigation of or with the consent or acquiescence of a public official, or other person acting in an official capacity.” It is an “extreme form of cruel and inhuman punishment [that] does not extend to lesser forms of cruel, inhuman, or degrading treatment or punishment.”
Two types of CAT relief are available to an applicant, both of which must be pursued before the IJ.
The first, withholding of removal, is a form of relief barring one from removal to the claimed country of torture. Withholding under CAT may be terminated only if the case is reopened and DHS shows that the person need no longer fear torture. Withholding under CAT is similar to withholding of removal, except that the applicant need not show eligibility under one of the five statutory grounds of persecution.
Deferral of removal is the second form of CAT relief. It is available to one likely to be tortured but ineligible for CAT because of past history as a persecutor, terrorist, or conviction for a “particularly serious crime.”
To terminate one’s deferral of removal status, DHS may file a request to schedule a hearing before an IJ rather than make a formal motion to reopen the case.
A grant of CAT relief does not lead to eligibility for permanent residence (i.e., a green card), or permit travel outside the United States, or allow one to petition for immediate family members.
It does, however, provide for employment authorization.
When All Else Fails
Temporary protected status (TPS) may be an option. TPS is a form of safe haven relief given by the secretary of DHS to nationals of designated countries who are unable to return to their home country on account of ongoing armed conflict, environmental disaster, or other extraordinary and temporary conditions.
The secretary determines the duration of such status as well as the availability of extending relief.
Although TPS recipients may remain in the United States and apply for employment authorization, they are ineligible for permanent residence (i.e., green card) on the basis of that status alone.
Once TPS has expired, one reverts to the immigration status held prior to the grant of TPS, unless that status has since expired or been terminated.
If out of status, the individual will be placed in removal proceedings.
If an individual is in removal proceedings at the time TPS is issued, he or she may seek administrative closure or a continuance for the duration of TPS.
To be eligible for TPS, one must show the following:
- Continuous physical presence and residence in the United States as specified by each TPS designation;
- The applicant is not subject to one of the criminal, security-related, or other bars to TPS; and
- The applicant submitted a timely application for TPS benefits.
There are certain factors making one ineligible for this form of relief:
- Having been convicted of a felony or two or more misdemeanors for crimes committed in the United States;
- Engaging in persecution, or otherwise being barred from asylum; or
- Being subject to one of several criminal-related or terrorism-related grounds of inadmissibility for which a waiver is unavailable.
Deferred Enforced Departure
Deferred enforced departure (DED) is a temporary form of relief granted to nationals of certain countries by the president as an exercise of his or her constitutional power to conduct foreign relations. DED was first used in 1990 to help Chinese students in the United States following events in Tiananmen Square, and has been used a limited number of times since. Although DED provides a temporary stay of removal and employment authorization, it does not provide eligibility for permanent residence. If in removal proceedings and eligible for DED, one should ask the IJ to administratively close or continue the case for the duration of DED.
Voluntary departure is a form of discretionary relief allowing the respondent to depart the United States at his or her own expense. It is preferable to an IJ’s removal order, which may bar reentry for several years and also subject one to criminal and civil penalties upon reentering the United States without prior authorization. A grant of voluntary departure allows one to avoid a bar from legal reentry to the United States at some point in the future.
There are different forms of voluntary departure available to a respondent at different stages in the removal hearing process.
Voluntary departure is first available if made prior to or at the master calendar hearing. An applicant for voluntary departure at this stage of proceedings must:
- Waive or withdraw all forms of relief;
- Concede removability;
- Have no conviction involving an aggravated felony nor present a security risk; and
- Demonstrate the financial ability to depart the United States.
If the criteria are met, the IJ will grant the respondent up to 120 days to voluntarily depart the country.
A grant of voluntary departure at the conclusion of removal proceedings requires one to demonstrate:
- One year physical presence in the United States prior to the date at which the notice to appear was issued;
- Financial ability to depart the United States in a timely manner;
- Payment of a bond of at least $500 within five calendar days of the IJ’s decision;
- Possession of a valid, unexpired passport or some other travel document.
If the requirements are met, the IJ may grant up to 60 days to voluntarily depart the country. Failure to voluntarily depart within the time granted by the IJ will make one ineligible, for a period of 10 years, to receive any relief and subject to a civil penalty of not less than $1,000 and not more than $5,000.
Administrative closure is a temporary cessation of the removal hearing by the IJ pending resolution of some matter, typically a pending petition before USCIS (e.g., I- 130, I-140, or I-360). Because the immigration court lacks jurisdiction over such petitions, USCIS is given time to process the matter. If the petition is approved, the respondent will be eligible to apply for permanent resident status before the IJ.
A private bill is an action of last resort when no other relief is available to one seeking to avoid removal. It entails convincing a member of Congress to sponsor a bill providing one with permanent resident status. If successful, one must then obtain passage of the bill in both houses of Congress and the president’s signature. Although rare, private bills are occasionally passed, especially if the respondent presents compelling factors.
Under estoppel, the respondent seeks to stop removal by arguing that, but for misconduct by the U.S. government, he or she would not be subject to removal. This is a difficult form of relief to obtain. One needs to show “affirmative misconduct” by the U.S. government. Acts of inattention, failure to act, or neglect are insufficient proof of “affirmative misconduct.”
Over the past several years, DHS has issued several memoranda explaining its authority to exercise discretion in prosecuting violations of immigration law and providing instructions to its personnel on how to do so. Prosecutorial discretion is not addressed in either the immigration statute or regulations. It is the inherent discretionary authority that the agency has with respect to how it enforces the law. Consult with an immigration attorney to determine if and how you can benefit from the various potential forms of prosecutorial discretion.
In practice, a grant of discretion for a person in removal proceedings most commonly means that you are requesting that ICE Chief Counsel agree to administratively close your case or to terminate proceedings. Termination of your case is what it sounds like: you are taken out of removal proceedings and returned to the status that you were in prior to proceedings being initiated. Administrative closure, on the other hand, is where your case is taken off the active docket, and you no longer need to attend court hearing dates, unless and until the your case has been recalendared and returned to the active docket. If you have been granted an employment authorization documentation (EAD) based on a pending application for relief,you can continue to renew the EAD after administrative closure. In addition, you are not subject to removal while your case is administratively closed.
Deferred Action for Childhood Arrivals (DACA)
On June 15, 2012, the secretary of DHS announced a special type of deferred action for people who entered the United States when they were children and are currently out of status. For individuals who were under the age of 31 on June 15, 2012, who entered the United States prior to the age of 16, have resided in the United States continuously since June 15, 2007, and who have completed high school, a GED, or are currently enrolled, requesting deferred action under this new policy may be their best option. Noncitizens who have been convicted of a felony, a significant misdemeanor, or three other misdemeanors are not eligible. Minors in proceedings who are under the age of 15 can apply for DACA if otherwise eligible.
Deferred action is a discretionary form of relief given after a recommendation by the DHS district director and approval by the regional commissioner. A grant of deferred action allows one to temporarily remain in the United States and avoid removal to the country of nationality. IJs do not have authority to grant deferred action. This relief does not in itself provide entitlement to any benefits. Rather it is a form of administrative grace designating one’s case as low priority for immediate removal.
Factors for consideration in a request for deferred action include:
- Likelihood of removal;
- Presence of sympathetic factors;
- Likelihood that a large amount of adverse publicity will be generated because of those sympathetic factors;
- The person’s continued presence is desired by law enforcement for an ongoing investigation or review; and
- Whether the individual is a member of a class of deportable noncitizens whose removal has been given high enforcement priority.
Once granted, the beneficiary should request either administrative closure or termination of proceedings, depending on the particular facts in the case. DACA provides a two-year permission to remain in the United States and an EAD, which can be renewed.
Trying to Return to the United States
Not all efforts at obtaining relief are successful and one must go home. What next if one wants to return to the United States?
An avenue to consider is the 212(d)(3) waiver. The waiver is available to those seeking to overcome any number of inadmissibility grounds by means of entry on a nonimmigrant visa.
Although difficult to obtain, the waiver is possible. With the exception of inadmissibility grounds having to do with immigrant intent, terrorism, national security, Nazi persecution, and invalid passport or visa, this waiver can effectively overcome all others.
The 212(d)(3) waiver request will accompany the application for the nonimmigrant visa at a U.S. consulate and outline the reasons for granting the waiver as the consular officer considers waiver recommendation:
- Recency and seriousness of the activity or condition causing the inadmissibility;
- Potential harm to the U.S.;
- Potential benefit or detriment to the U.S.;
- Reason for travel to the United States.
If the consular officer decides to recommend the waiver, the case is sent to the Department of Homeland Security for a final decision. If approved, one may return to the United States on the nonimmigrant visa.
Immigration can be an extremely complex legal situation to find yourself in. If you would like guidance from an experienced immigration attorney do not hesitate to call us today.