1. Cancellation of Removal
If you are in deportation or removal proceeding or have been issued a Notice to Appear (NTA) in immigration court, you could qualify to have your removal or deportation cancelled. If it’s canceled and you have permanent residence (green card) you will get to keep it. If you don’t you have it, you will get permeant residence (green card).
If you have a green card, you have to prove:
- Been lawfully admitted for permanent residence for five years;
- Resided in the United States continuously for seven years after having been admitted in any status (including admission as a nonimmigrant);
- Not been convicted of an aggravated felony; and
- Warrants a favorable exercise of discretion by the Attorney General
If you don't have a green card, you have to prove:
- Has continually resided in the United States for at least 10 years;
- Has been a person of good moral character throughout the entire 10-year period;
- Has not been convicted of certain crimes; and
- Establish that removal would result in “exceptional and extremely unusual hardship” to your U.S citizen or permanent resident (green card) spouse, parent, or child (under 21 years old).
Although good moral character is a statutory requirement, it is also a discretionary one. The law defines who is not a person of good moral character, but determining who is of good moral character is discretionary and subjective. The law states the following people cannot show good moral character:
- A habitual drunkard;
- A practicing polygamist, prostitute, smuggler, or a person convicted of a crime involving moral turpitude (CIMT), multiple crimes, or a drug crime;
- A person who has given false testimony in order to gain an immigration benefit;
- A person who primarily makes his living from illegal gambling;
- A person who has been in prison, as a result of any conviction, for an aggregate period of 180 days or more;
- A person who has ever been convicted of an aggravated felony; or
- Anyone who has ever engaged in conduct relating to Nazi persecution, participation in genocide, or the commission of acts of torture.
2. Asylum, Withholding of Removal, and CAT
If you are seeking protection from persecution while in immigration court, you can seek asylum. In order to be granted asylum you must meet the definition of “refugee” and satisfy other eligibility requirements. If your asylum application is denied, you can appeal the Board of Immigration Appeals. During this time, your deportation is automatically stopped or stayed.
It is your burden to prove that you qualify for asylum. You must prove that you are outside your country of nationality or, in the case of a person having no nationality, outside any country in which you have last habitually resided, and you are unable or unwilling to return to that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, and the country is unable or unwilling to protect you. You must also prove that you cannot relocate to any part of that country and be safe. If you have been convicted of certain crimes you may be ineligible for asylum even if you prove it. The granting of asylum is discretionary; therefore, even if you prove that you qualify, a judge can still deny your application as a matter of discretion. Once your application is approved, you can file to bring over certain family members if they are still outside of the U.S. If they were in the U.S. at the time of your asylum application, you can include them in your application. After one year of asylee status, you may apply for permanent residence (green card).
If you don’t qualify for asylum you may qualify for withholding of removal or protection under the Convention Against Torture (CAT). However, neither of these options provide a path to permeant residency (Green Card). An application for asylum is automatically considered to be an application for withholding of removal. It is similar to asylum, but a more limited form of relief. It is based on Article 33 of the Refugee Protocol, which places a mandatory prohibition against returning an individual to a country where his or her “life or freedom would be threatened.” This is commonly referred to as the principle of non-refoulement or non-return. The burden is on you to establish that your life or freedom would be threatened in the proposed country of removal on account of your race, religion, nationality, membership in a particular social group, or political opinion. Unlike asylum, you may rely on credible testimony alone because such credible testimony may be sufficient to sustain the burden of proof without corroboration. But, withholding of removal carries a higher legal standard of proof than asylum. If past persecution is not established, applicants for withholding of removal must demonstrate a “clear probability” of persecution, or in other words, that it is “more likely than not” that they would be persecuted if removed to their home countries. This burden is more difficult to satisfy than the well-founded fear standard for asylum, which requires only a showing of a “reasonable possibility” of persecution. As long as there are no statutory bars to your withholding application, for example particularly serious crime convictions or there is good reason you committed one, and you prove your life or freedom would be threatened in your country on account of one of the protected grounds, withholding of your removal is mandatory - the Immigration Judge must give it to you.
If you can’t apply for either asylum or withholding of removal and you fear harm if you were returned to your home country, you can apply for deferral of removal under the Convention Against Torture (CAT). There are no bars to deferral of removal under CAT, although, like withholding of removal, deferral of removal under CAT does not allow a path to permanent residency (Green card).