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Removal Proceeding Defenses & Remedies for Undocumented Immigrants

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018

Certain undocumented immigrants are placed in expedited removal proceedings.  Others are placed in a regular removal proceeding.  See Removal Proceedings.

The defenses and remedies available to undocumented immigrants, who have illegally entered into the United States, are almost similar to those available to nonimmigrants, except for a very important difference. Undocumented immigrants who have entered the country without inspection generally cannot adjust their status and receive a green card in the United States. This restriction has serious implications and we will discuss them below.

What are the available defenses and remedies available to undocumented immigrants who have illegally entered the United States without inspection?

  • Adjustment of Status.  Generally, nonimmigrants in removal proceedings, who are beneficiaries of approved family-based or employment-based immigrant petitions, may request that the immigration judge adjust their status to that of a permanent resident.  See Adjustment of Status.
     
    Undocumented immigrants, who have illegally entered the United States without inspection, generally cannot file for adjustment of status inside the United States, but they may have alternative options for securing immigrant status.  Adjustment of Status Alternatives for Undocumented Immigrants.
  • Cancellation of Removal. Cancellation of removal is available to individuals, who have been physically present in the United Sates for a number of years (depending on the circumstances), are people of good moral character, and whose removal would work “extremely unusual hardship” to their citizen or permanent resident spouse, parent, or child. See Cancellation of Removal.
  • Cancellation of Removal for Battered Spouses and Children. This cancellation of removal is available to spouses and children, who have been battered or subjected to extreme cruelty by certain relatives who are or were citizens or permanent residents.  See Cancellation of Removal for Battered Spouses and Children.
  • Asylum. Asylum is available to qualified noncitizens who have a well-founded fear of future persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion.  See Asylum.
  • Withholding of Removal. Withholding of removal is a temporary relief that that withholds the removal of qualified noncitizens, found to be removable, to a country where they may face a threat to their life or freedom on the basis of race, religion, nationality, membership in a particular social group, or political opinion.  See Withholding of Removal.
  • Convention against Torture (CAT) Protection. CAT Protection is a temporary relief that withholds the removal of noncitizens, found to be removable, to a country where they may be subjected to torture, either directly by government officials or indirectly with the consent or acquiescence of government officials.  See CAT Protection.
  • Temporary Protected Status (TPS). As its name suggests, Temporary Protected Status is a temporary, nonimmigrant status, which is accorded to nationals of particular countries, which are stricken by natural disaster, war, or armed conflict.  See Temporary Protected Status.
  • Prosecutorial Discretion. You may request that the ICE attorney, who represents the government in the removal proceeding, to favorably exercise his or her prosecutorial discretion in order to allow you particular relief. Making such a request is not as simple as it sounds, and obtaining substantive relief through exercise of prosecutorial discretion would be rare. Nonetheless, you may be able to make a compelling presentation and argument for obtaining temporary or permanent relief.  See Prosecutorial Discretion.
  • Voluntary Departure. Voluntary departure is the government's consent and permission to allow you depart the United States voluntarily instead of being deported and being saddled with the consequences of deportation.  See Voluntary Departure.

Related Topics:

Adjustment of Status Alternatives for Undocumented Immigrants

Cancellation of Removal

Cancellation of Removal for Battered Spouses & Children

Asylum

Withholding of Removal

Convention against Torture (CAT) Protection

Temporary Protected Status (TPS)

Prosecutorial Discretion

Voluntary Departure

 

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