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Aliens - Deportation Remedies

relief united discretionary judge

Aliens generally want to avoid deportation at all costs. Even if an immigration judge rules that an alien is deportable, the alien may still fight the deportation order. This is called seeking relief from deportation. Broadly speaking, two kinds of options exist: filing an appeal and seeking "discretionary" relief. Whichever method the alien chooses, time is of the essence. She or he usually must seek relief before the BCIS begins executing the deportation order.

Appeals from deportation rulings operate on three levels. First, the alien's attorney may file a motion to reopen the case, also called a motion to reconsider. It is used chiefly to present new evidence, and strict rules govern its usage. Courts frown on such motions because of the potential for unnecessarily delaying deportation, and the judge may deny the motion if the alien has previously failed to establish a sufficient case. In any event, the motion will not stop a pending deportation order. Second, aliens may go to the higher authority of the Board of Immigration Appeals (BIA). Filing a so-called administrative appeal with the BIA automatically delays the execution of a pending deportation order. The BIA decision to uphold the deportation order, throw it out, or send the case back to the immigration judge is final. Within six months, however, the alien may appeal a decision of the BIA to a federal court for judicial review. Courts may hear the case if there have been violations of the alien's constitutional rights.

As the name implies, discretionary relief is granted at the discretion of a judge. If granted, it will eliminate or postpone the execution of a deportation order. Generally, the alien must apply for discretionary relief during the deportation hearing, although some forms of relief may be sought before the hearing begins. In a two-part process, the judge first determines whether the alien is eligible under statutory requirements and then at the judge's discretion decides whether to grant it. Mere eligibility is not a guarantee of relief.

Several forms of discretionary relief exist. One very popular form is voluntary departure, which permits the alien to leave the United States under his or her own power, seek a destination, and even return to the selected country immediately, thus avoiding the stigma and penalties of deportation. Suspension of deportation helps the alien who has been in the United States for a long period of time and for whom deportation would result in harsh consequences. Qualifying for suspension relief is difficult: the alien must have been continuously present in the United States for seven to ten years, depending on the nature of the conduct that rendered the alien deportable—for example, overstaying a visa versus committing a felony; must have been a person of good moral character during that time; and must demonstrate that he or she or the alien's U.S. citizen spouse, parent, or child would suffer extreme hardship (under the seven-year rule) or exceptional and extremely unusual hardship (under the ten-year rule) if the alien were deported. Another form of relief, adjustment of status, is available to an alien whose status would otherwise let him or her remain in the United States: if an alien is admissible for permanent residence, he or she may seek this relief to avoid having to go abroad while an immigrant visa is processed.

Asylum, available only to aliens who qualify as refugees, differs from other forms of discretionary relief. First, it does not guarantee an alien permanent residence but merely grants the right to reside and work in the United States temporarily, for as long as the alien is entitled to refugee status. Under the INA, a refugee is an alien unwilling or unable to return to her or his nation because of a well-founded fear of persecution on the ground of race, religion, nationality, membership in a particular social group, or political opinion, or an alien whose nationality has been given refugee status by the president of the United States. Asylum may be sought at any time during a deportation or exclusion hearing and can sometimes lead within one year to the granting of permanent residence.

Closely related to asylum is withholding of deportation. Although the grounds for withholding are similar to those for asylum, this form of relief may only be sought during a deportation hearing, and its duration is always temporary. Aliens granted asylum or withholding of deportation may qualify for adjustment of status and thereby become lawful permanent residents or citizens.

Finally, a few kinds of discretionary relief are used in exceptional circumstances. A stay of deportation is a temporary hold on a deportation order, commonly used in connection with a motion to reopen a case or pending an application for permanent residence. Registry, available only to aliens who entered the United States before January 1, 1972, is used to create a lawful record of admission when no record is available. Further relief includes deferred action status,a nonstatutory guideline contained within BCIS instructions to district directors; it amounts to an indefinite hold on any deportation action based on sympathetic factors. Rarely used is estoppel, in which courts stop deportation orders because of government misconduct.

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about 6 years ago

Can an alien who has an approved I-130 petition and has been denied a motion to reopen and has an Order of Deportation pending, adjust status.