Discretionary relief means that the relief will be granted or approved at the discretion of the immigration judge. According to the U.S. Department of Justice, once you are placed in removal proceedings and you are found to be removable by the immigration judge, if eligible, you may request one or more types of discretionary relief. There are four types of discretionary relief: voluntary departure, cancellation of removal, asylum, and adjustment of status. These types of relief are available during a hearing before the immigration court. To apply for this discretionary relief, you must show the immigration judge that you are eligible for this relief under the U.S. immigration law.
a) Voluntary Departure
According to the U.S. Department of Justice, voluntary departure is the most common form of relief from removal and may be granted by immigration judges and the DHS. Voluntary departure allows you, as a removable alien or immigrant, to leave the United States at your own personal expense and return to your home country or another country if you can secure an entry there.
This option can help you avoid possible future immigration consequences, such as having a deportation order and not being able to return to the U.S. for many years. Sometimes, if you are not eligible for any other relief, voluntary departure can be the only option to prevent a deportation order against you. It is important to remember that, if you are in removal proceedings, you must be formally granted voluntary departure. If you just leave on your own, you may be considered to have self-executed an order of deportation (removal).
It is important to note that once you are granted voluntary departure by the immigration judge, you must depart within the time specified by the immigration judge. Immigration judge has the discretion to set a shorter deadline. The general rule is that if you are granted voluntary departure prior to the completion of removal proceedings, you must depart within 120 days. If you are granted voluntary departure at the conclusion of removal proceedings, you must depart within 60 days. Also, if you choose to appeal a decision rather than to depart, the Board of Immigration Appeals (BIA) usually will extend an earlier grant of voluntary departure for 30 days.
Please remember that not all immigrants will be eligible for voluntary departure. If you are granted voluntary departure but fail to depart, you will be penalized. For example, if this is your first removal, you cannot lawfully return to the United States for 10 years. If you have been removed in the past, you cannot lawfully return to the United States for 20 years. If you have been convicted of an aggravated felony, you cannot lawfully return to the United States forever. To learn more about Voluntary Departure, please visit our related article titled “Voluntary Departure,” and the U.S. Department of Justice website.
b) Cancellation of Removal
Based on the U.S. Department of Justice, the cancellation of removal relief is available to lawful permanent residents (LPRs) and non-permanent residents. If you are an LPR, cancellation of removal may be granted if you:
- Have been a lawful permanent resident for at least 5 years;
- Have continuously resided in the United States for at least 7 years after having been lawfully admitted; and
- Have not been convicted of an “aggravated felony” as defined within the U.S. immigration law.
If you are a non-permanent resident, cancellation of removal may be granted if you:
- Have been continuously present for at least 10 years;
- Have been a person of good moral character during that time;
- Have not been convicted of an offense that would make you removable from the United States; and
- Demonstrate that removal would result in exceptional and extremely unusual hardship to your immediate family members (your spouse, parent, or child) who are either U.S. citizens or lawful permanent residents.
To learn more about Cancellation of Removal, please visit the U.S. Department of Justice website.
Under section 208(a) of the Immigration and National Act, the Attorney General may, at his discretion, grant asylum to an alien who qualifies as a “refugee.” To apply for asylum, you, as the asylum applicant, must demonstrate an inability to return to your home country because of past persecution and/or a well-founded fear of future persecution based on your race, religion, nationality, membership in a particular social group, or political opinion.
You will not be eligible if you failed to file an asylum application within your first year of the latest arrival in the United States, unless you have an explanation of why you failed to apply during your first year. The one-year bar can be waived if there are exceptional circumstances in your case, such as changed circumstances in your country, or if you had (or still have) a valid nonimmigrant status.
You will also not be eligible for asylum if you have been convicted of an aggravated felony, or are found to be a danger to national security. To learn more about asylum, please see our related articles titled “Asylum Overview” and “Asylum Application and Well-Founded Fear of Persecution.”
d) Adjustment of Status
According to the U.S. Department of Justice, the adjustment of status relief is available to change your status from a non-immigrant (i.e., tourist, business, temporary work, or study, etc.) to a lawful permanent resident (i.e., authorized to live and work in the United States permanently). If you have been previously admitted into the United States, you can apply to DHS for adjustment of status, for example based on your marriage to a U.S. citizen. If you are in removal proceedings, you can apply for adjustment of status with the Immigration Judge. To learn more about Adjustment of Status, please visit the U.S. Department of Homeland Security website.
e) Prosecutorial Discretion
In 2011, the U.S. Immigration and Customs Enforcement outlined their guidelines for detention and removal of undocumented immigrants, stating that the enforcement and removal policies should prioritize threats to national security, public safety, and border security. Immigrants who are low priority for deportation include veterans and members of the U.S. armed forces; long-time lawful permanent residents; minors and elderly individuals; individuals present in the United States since childhood; pregnant or nursing women; victims of domestic violence; trafficking, or other serious crimes; individuals who suffer from a serious mental or physical disability; and individuals with serious health conditions. If you do not have a criminal background and have ties to the community, you may be eligible to stay in the United States pursuant to prosecutorial discretion.