Removal Defense

• EOIR-42B, Cancellation of Removal for Non-Legal Permanent Residents 

  • You may be able to apply for Cancellation of Removal on form EOIR-42B if you meet the following requirements:

    • The first is that you must have maintained a continuous physical presence in the US for ten or more years.

    • During that time, you must have been a “person of good moral character.”

    • Your removal must result in exceptional and extremely unusual hardship to a United States citizen or lawful permanent resident such as a spouse, parent, or child.

    • Lastly, you must also convince a judge that you deserve a favorable exercise of discretion.

    • The relief is very discretionary. The standard of “exceptional and extremely unusual hardship” is very hard to demonstrate unless there are elements such as a severe medical condition faced by the qualifying relative. To meet the required hardship, one must demonstrate that his or her qualifying spouse, parent, or child would suffer hardship that is substantially beyond that which would ordinarily be expected to result from the alien’s deportation.

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• EOIR-42A, Cancellation of Removal for Legal Permanent Resident

  • To have been a Legal Permanent Resident (LPR) for at least 5 years at the time the application is filed;

  • Prior to service of the Notice to Appear (NTA), or prior to committing a criminal or related offense referred to in sections 212(a)(2) and 237(a)(2) of the INA, or prior to committing a security or related offense referred to in section 237(a)(4) of the INA, to have had at least 7 years continuous residence in the United States after having been lawfully admitted in any status; and

  • To have not been convicted of an aggravated felony.

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• I-589, Asylum

  • To be granted asylum, a person must demonstrate that he or she is a “refugee,” that he or she is not barred from asylum for any of the reasons listed in our immigration laws, and that the decision-maker should grant asylum as a matter of discretion. A “refugee” is any person who is outside his or her country of nationality (or, if stateless, outside the country of last habitual residence) and is unable or unwilling to return to that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.

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• Voluntary Departure (VD):

  • This method of relief comes in two different forms, pre-conclusion voluntary departure, and post-conclusion VD. The decision to grant VD is discretionary by the Immigration Judge. DO NOT sign anything if you are detained by ICE until you have spoken to an immigration attorney.

    • Pre-conclusion VD: An immigrant may apply for pre-conclusion VD before or at their first hearing. To qualify, an immigrant must make the request before or at their first hearing; only request VD as their form of relief (and no others); admit they are removable from the United States; waive appeal, and prove that they have not been convicted of any aggravated felonies and not a national or public safety risk.

    • Post-conclusion VD: An immigrant may apply for post-conclusion VD if they have been physically present in the U.S. for the past year; have been a person of good moral character for five years prior to seeking VD; have not been convicted for a deportable crime; have the financial means and necessary travel documents to depart the country. The immigrant must also post a VD bond, set by an immigration judge, within five days of the order.

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• Bond proceedings

  • To qualify for a bond, an immigrant or lawful permanent resident (LPR) must show they are not a danger to the community and are not a flight risk. An immigrant or LPR may qualify to be released on bond depending on their criminal and immigration history as well as their current immigration status.

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• Board of Immigration Appeals (BIA)

  • Once an Immigration Judge makes their decision either orally or in writing, the immigrant has the option to file an appeal with the BIA. In most cases, an appeal must be filed within thirty days from the date of the decision. If you fail to file your appeal on time, your right to appeal is waived.

  • Check the status of your appeal case by calling: 1(800) 898-7180.

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• What is a Notice to Appear (NTA), Form I-862?

  • DHS lists all of the charges (grounds for removal and factual allegations to establish removal) an immigrant or legal permanent resident (LPR) is being charged with on an NTA. The NTA gives notice to the immigrant or LPR that they may be put into removal proceedings. An NTA should have the immigrants' or LPR’s identifying information, the nature of proceedings, removal charges, factual allegations, the date/time/place of removal proceedings, advisals of certain rights and responsibilities, and a certificate of service.