marc Schifanelli, Esq.
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Other aliens in removal may have opportunity to submit applications to the U.S. Citizenship and Immigration Service (USCIS) during the course of the proceedings. For example, if an alien is in deportation because his conditional resident status has expired (e.g., due to legal separation or divorce), the proceedings could be temporarily stayed for the alien to finalize his situation and submit the proper filing to USCIS. Most Immigration Judges will postpone deportation until such time as USCIS has decided the underlying petition.
Similarly, persons in removal who are otherwise eligible for adjustment of status to permanent resident status, for example, based on marriage to a U.S. citizen, may have their case postponed to allow USCIS time to adjudicate the underlying I-130 marriage petition. Other petitions filed with USCIS include applications for Temporarily Protected Status (TPS) or Special Juvenile Immigrant visas if the alien has the prerequisites.
Defensive Petitions for Relief
Another category includes petitions for asylum, withholding of removal, and withholding under the United Nations Convention Against Torture ("CAT").
A successful petition for asylum results in alien receiving "refugee" status, or status as an "asylee," and the alien's children and spouse may be included in the petition. After the statutory period as an asylee, the alien may apply for permanent resident status.
There's not enough room here to give the concept of asylum its due. The point to remember is that the burden is on the alien to demonstrate that he or she is eligible for asylum or withholding, and aliens who have immigration lawyers representing them have a much greater chance of success.
One mission of the U.S. Department of Homeland Security is to deport aliens who are in the U.S. without legal authorization. Removal proceedings (i.e. "deportation") are conducted in front of a Department of Justice Immigration Judge and in an Immigration Court. The Government is represented by attorneys (Special Assistant U.S. Attorney) and the alien in removal, the Respondent, may be represented by a private attorney (an alien has not right to be provided an attorney if he or she cannot afford one.)
Many aliens in the U.S. without authorization find themselves in deportation and removal proceedings based simply on their entry into the U.S. "without inspection." DHS can, however, start deportation and removal proceedings against U.S. Lawful Permanent Residents based on, as example, run-ins with the criminal justice system. A conviction for committing certain crimes - or even an admission of guilt with probation before judgment or other pre-conviction relief - can lead to deportation and removal.
Some aliens will have relief available, including but not limited to the following:
Some may be able to seek relief from deportation by petitioning the Immigration Judge to use his discretionary authority. For example, if you have an immediate relative who is a Permanent Resident or U.S. Citizen, and he or she will suffer exceptional and extremely unusual hardship if you are deported, you may qualify for Cancellation of Removal. If you succeed - which isn't easy since discretion is not granted without a showing of exceptional hardship - then you could be granted your permanent resident status (green card).