To be able to obtain asylum in the United States, a person has to show that either the person has been persecuted, or there is a likelihood of being persecuted if the person returns back to their country. Fear of persecution is based on 5 grounds—political opinion, religion, membership in a particular group, ethnicity, or race. Those are the main things that a person needs to prove to show persecution. A very important thing about asylum is the definition of persecution. You have to show that it has gone to a level where there has actually been harm. It’s not just harassment, because sometimes people say that their government has harassed them. Persecution is a very high level, and it has to be proved that it has been caused because of one of those 5 different factors.

Withholding of removal is very similar to asylum. Normally, asylum has to be filed within one year of the person’s arrival to the United States. Many times, when someone does not file the asylum application on time, they may be eligible for withholding of removal. The main difference between withholding of removal and asylum is that asylum grants residency. Withholding of removal only tells the person that the government is not going to send them to the country where they may be persecuted. Additionally, the burden of proof in a withholding case is a little higher. Basically, the person has to show that there is a very good likelihood that the person is going to be persecuted if they are returned back to their country.

Adjustment of status is mainly possible when someone has an immediate relative in the United States that is able to file a petition for them. For example, in the case of spouses with children over the age of 21 that are able to petition for the parent, if the person has a petition under the immediate relative petition, what the immediate relative does is it confers an immediate benefit to the person. If there is an approved petition, the person may adjust their status from being here illegally to the status of a Legal Permanent Resident. Something that is very important for the adjustment of status is that the person must have arrived legally to the United States, or they must have been paroled into the United States, because it’s one of those requirements in the law that the person be admitted. There are some exceptions to that, one of which is if the person qualifies under 245-I.

245-I is a law that basically allows someone, even if they came to the United States illegally, to adjust status if they have a pending petition before April 30th of 2001, and they were present in the United States by December 20th of 2000. You still see some of those cases, though there aren’t a lot of those cases because it was long ago. However, if someone has a petition pending before April 30th of 2001, they may be able to do adjustment of status even if they entered the United States illegally.

Suspension of deportation is a measure that the government may take for humanitarian reasons. If someone has a final order of removal, and the government decides that they don’t want to enforce the deportation for humanitarian reasons—maybe because someone in the family has serious health problems, or any other humanitarian considerations—then the government may allow the person to remain in the United States even after an order of removal has been issued by an immigration judge. At the same time, it allows the person to have an employment authorization document during the time that they are in the United States. This type of benefit is entirely discretional, based on the discretion of the immigration officer making the determination.

If there were a compelling case in the sense that it is a humanitarian situation—someone may die or someone may need medical treatment—then it would be a good reason to apply for this type of relief.

When someone is in front of an immigration judge, sometimes they are there because of something bad they did. A criminal conviction, or even telling a lie to an immigration officer, may raise a bar of inadmissibility or removability. A waiver is where, although someone doesn’t qualify for an immigration benefit because of those bars of removability, if they meet certain requirements, the judge may grant the person a waiver. For example, there are some criminal convictions that make a person inadmissible to the United States. For the criminal waiver, if a person can show that their family—especially their spouse, children, or parents—are going to suffer extreme hardship, and that they deserve a favorable exercise of discretion, because the good factors in the case are more than the negative factors, then the judge may approve one of these waivers. The waiver would erase the bar of inadmissibility to allow the person to adjust their status or to keep their status current.

There are also waivers for drugs and for illegal presence in the United States. These are kinds of waivers, where a person can show compelling situations in their case, and especially for their family members here. If after the judge analyzes all this and realizes that the person deserves a second chance, if the judge approves the waiver, the person is allowed to remain in the United States.

The most important thing that everybody needs to understand is that correct legal representation can make or break a case. That is the most important thing to consider at the time you are facing removal proceedings, or when you are placed in front of an immigration judge, because you can’t have two people with the same set of facts. If, in one case, the right actions are taken but in the other one, they are not, it can make a big difference in the case. For example, when you are reviewing the NTA (Notice To Appear), what some attorneys do is they admit to everything on the NTA. That’s a recipe for failure, because every element of what the government is saying about the person being deportable or not has to be examined. This is because there are some cases, in which after you review the NTA, you realize that the government is wrong. If you admit to everything they are saying, you are doing their work for them.

It’s very important to have an attorney that is going to be willing to make the government prove their case. It’s very important, especially now that the government wants to deport as many people as possible. They are making immigration court just deportation machines. It’s very important, for anyone that goes in front of an immigration judge, to have their case evaluated to make sure that the government has proof of the elements of their case, and also to make sure that any relief for deportability is addressed. This assures that the person has a fair day in court to be allowed to remain in the United States.