For an undocumented person who is in immigration courts and in a deportation process, one of the main tips is to look for ways to arrange an agreement as soon as possible.
When a case reaches immigration courts, it can take more than five years before its last audience with the judge. During the waiting time, it’s possible to arrange an agreement with the prosecutor.
An agreement refers to judicial discretion. Priority is usually given to cases of people who have long periods living in the US, have US citizen children, have US citizen or Legal Resident spouse, don’t have crimes, or whose crimes are only misdemeanors. People in these positions have higher chances of negotiating an agreement with the prosecutor.
Achieving an agreement with the prosecutor is something an experienced Immigration Attorney will look for. The purpose of this agreement tends to be pausing the case during a certain time, which can range from two to four years. This time can be what is needed to look for an alternative to regularize migratory status. The case is held on pause, so there is no risk of deportation.
Other types of agreement imply the case being completely removed from courts. In such situation, there will be no reasons to worry about a deportation.
Common solutions
There are certain types of solutions in immigration courts. Those possible solutions might be hard to achieve.
42-B Cancellation of Removal – The 10 Years Law
The 10 Years Law, or Cancellation of Removal 42-B
applies for those who have 10 years or more of unlawful presence in the US, don’t have severe crimes on his/her record in the US, and have a US citizen or Legal Resident spouse, parent, or son/daughter who will suffer extreme difficulties if he/she cannot stay in the US.
Having a family member who attends special education, has autism, emotional problems or ADHD might not be considered an extreme difficulty, so it will be rare for a judge to give a route to Permanent Residence for these reasons.
Judges might be looking for something more extreme, like cancer or inabilites that threaten family member’s life. Being these scenarios different from autism, ADHD other more controllable health issues; are the kind of difficulties the judges might consider for a Cancellation of Removal 42-B.
That could be the reason why it can be struggled to succeed in a case under the 10 Years Law or Cancellation of Removal 42-B: contemplating as extreme difficulty something that for the judge might not be that extreme.
For this type of case, something to bear in mind is that there is a limit of cases per year to be approved. Due to the existence of this limit, judges may be strict in determining which cases will be approved.
If it’s intended to regularize migratory status under the 10 Years Law or Cancellation of Removal 42-B, it’s recommended to talk with an Immigration Attorney and see if he/she tries to arrange a favorable agreement for the case with the prosecutor.
Asylum
It might be difficult to succeed in asylum cases. Two factors that will help to know how hard will an asylum case be are the migrant’s country of origin and the jurisdiction in charge of the case. Considering these two factors, there can be an idea of what possibilities are there to succeed with the case. However, these are not determining elements to succeed in an asylum case.
For someone coming from Cuba or Venezuela, it can be easier to succeed in an asylum case because of political differences. Judges can be more open to the idea of approving asylum cases for people coming from Cuba or Venezuela who arrive in the US because of political differences from those in his/her country, and types of fear around his/her political stance.
On the other hand, for someone coming, for instance, from Mexico, entering the US arguing fear of domestic violence, organized crime, or fleeing extreme poverty; might not be a valid element to succeed in an asylum case. Even despite that due to extreme poverty people suffer certain types of violence or mistreatment and try to enter the US looking for a better life, statically and nationwide, will have a low possibility of succeeding in an asylum case.
Another element to consider in asylum cases is jurisdiction. In places such as El Paso (TX), for someone from Mexico who arrives in the US, obtaining asylum based on domestic violence or problems with organized crime can be difficult. On the other hand, in freer jurisdictions or more open to the idea of providing asylum, like New York or California, might have higher chances.
Both the jurisdiction and the country of origin have much to do with the possibility of succeeding in a case.
Certain elements must be proven to succeed in an asylum case, and there are red flags that help understand if it could be a good idea to start thinking about other options.
Both of these possible solutions, being the most common two in immigration courts: Cancellation of Removal 42-B, sometimes referred to as the 10 Years Law; and Asylum, represent cases which is hard to succeed with. Being the main defenses that lawyers tend to use, it can be a good idea to look for other ways to regularize migratory status.