Beyond Asylum: Deportation Relief During the Trump Administration

The latest case-by-case court records show that Immigration Judges completed 1,075,578 deportation cases thus far during the Trump Administration. Of these, 395,244 immigrants (37%) submitted applications for what is commonly known as "relief from deportation"—or simply "relief"—to the Immigration Court[1]. If approved, an application for relief generally allows an immigrant to remain in the country and may provide a path to temporary or permanent status in the United States.

Asylum is one of the most common and well-known forms of relief. Of the nearly 400,000 deportation cases where relief was requested, 298,176 cases-or 28 percent of all cases- involved only asylum-related forms of relief. But in addition to asylum, Congress has also provided for many less well-known and less common forms of relief. An additional 30,888 cases included applications for asylum-related relief as well as applications for other types of relief. Immigration Judges also completed 66,180 cases that involved only non-asylum forms of relief. Altogether nearly one in ten immigrants facing deportation applied for relief other than asylum. See Figure 1.

Figure 1. Percent of Applications for Relief Among Deportation Cases Decided During the Trump Administration,
January 20, 2017 to September 30, 2020.
(Click for larger image)

In this report, TRAC examines lesser known-but nonetheless important-forms of relief in the Immigration Court. These data were obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University and cover the period of the Trump Administration from January 20, 2017 through September 30, 2020[2].

What is "Relief"?

Deportation cases typically involve two key steps: the first involves determining if an individual is removable under U.S. immigration law; the second involves determining whether the individual is eligible for any forms of relief that enable (or require) the government to allow that person to remain in the United States.

The fact that a noncitizen meets the criteria for deportation does not, by itself, mean that an immigration judge will issue a deportation order, nor that a deportation order will ultimately be carried out. The various types of deportation relief discussed in this report are not "loopholes" or mere "technicalities" in immigration law. The categories of relief discussed in this report were explicitly created by Congress to enable specific classes of immigrants facing deportation to remain in the U.S.

The reason that relief is such an important issue for understanding the Immigration Courts is that even though only 37 percent of immigrants in our study applied for relief, it is not immediately apparent at the outset who will be eligible for which forms of relief. As a result, the process of screening for relief—i.e. reviewing a case to determine if an individual is even eligible for any type of relief—can be demanding and requires specialized knowledge of the various types of relief available. Even for those types of relief for which relatively few immigrants apply, the deportation consequences of having a path to legal status and not applying for it (or not even being aware that one could apply for it) would strike many people as tragic.

Until now, TRAC has primarily focused on relief through asylum in its reporting. In addition to annual Judge-by-Judge Reports on asylum decisions, TRAC offers an online Asylum Decisions data tool, which is updated monthly. This interactive data tool offers a wealth of details on asylum decisions, covering the past 20 years. Details include the year, month, and hearing location, as well as the state, county, nationality, representation, hearing attendance and custody status of the individual[3]. In addition, other online data tools track how often relief more generally is granted. While giving overall counts for immigrants granted relief, these other tools provide no breakdown on the specific type of relief involved.

Deportation Relief During the Trump Administration

For this study, TRAC examined all deportation cases that were completed by an Immigration Judge on or after January 20, 2020. The data are current as of the end of September 2020. Many of the removal cases that have been decided during the Trump Administration, of course, began before President Trump took office. Due to the huge Immigration Court backlog and the complexity of many immigration cases, it is not unusual for cases involving applications for relief to take years from start to finish.

Because immigrants are able to apply for more than one type of relief at the same time, the number of relief applications filed was over two times the number of persons seeking relief. Altogether 395,244 immigrants facing deportation during this period filed a total of 941,031 relief applications. Table 1 details the types of relief sought and how often each occurred.

In the sections that follow, after grouping related forms of relief together, the report discusses their prevalence in the Immigration Court data and describes in general terms the legal grounds under which each type of relief can be granted.

Asylum, Withholding, and the Convention Against Torture

The most common and well-known form of relief is asylum. Applicants who have a well-founded fear of persecution in their home country may be able to submit an asylum application to an Immigration Judge while their case is pending[4]. If asylum is granted, deportation proceedings end. Asylum status allows the individual to apply to become a lawful permanent resident (i.e. get a green card), and typically allows the immigrant to eventually apply to become a U.S. citizen.

Immigrants who do not qualify for asylum may qualify for withholding of removal under U.S. immigration law or under the Convention Against Torture (CAT). Like asylum, both forms of withholding share a concern about persecution, and, in fact, both forms of withholding are applied for with the same form (I-589) used when applying for asylum. In practice, many immigrants who apply for asylum also apply for these other forms of withholding at the same time should their asylum request be denied. The criteria for both forms of withholding are more stringent than asylum, and, if granted, applicants can lawfully live and work in the U.S. but without a clear path to citizenship.

Of the 941,031 total applications for relief in this data, an overwhelming majority of the applications—836,159 or 88.9%—were for asylum or asylum-related forms of relief. Altogether, Immigration Judges received 301,063 requests for asylum, 269,454 requests for withholding of removal, and 265,642 requests for withholding of removal under the Convention Against Torture. However, most applicants applied for all three forms of relief. Counting cases, rather than applications, as noted earlier just 329,064 deportation cases included one or more applications for asylum-related relief.

A distinct but closely related form of asylum known as Coercive Population Control exists for people claiming persecution under China's one-child population control policy. Although China formally ended this policy in 2015, a declining (but not insignificant) number of immigrants facing deportation may still qualify for this form of asylum. A total of 579 people applied for asylum under the Coercive Population Control category in cases completed during the Trump administration.

Cancellation, Suspension, and Registry

Cancellation of removal and the older form of cancellation known as "suspension" allow some immigrants who face deportation to remain in the U.S. There are two types of cancellation of removal: one for immigrants who are already in the U.S. as lawful permanent residents (called "42A"), and a one with a higher standard for immigrants who are in the U.S. unlawfully (called "42B"). The terms 42A and 42B are based on the names of the forms that accompany these forms of relief, form EOIR-42A and EOIR-42B.

After asylum-related relief, cancellation is the second most common form of relief. Immigration Judges considered a total of 72,526 applications for cancellation of removal. This includes 60,588 from immigrants in the country unlawfully (i.e. 42B) and 11,938 from lawful permanent residents facing deportation (i.e. 42A). Taken together, applications for cancellation made up 7.7 percent of all applications for relief.

In cases where immigrants facing deportation have been in the country for a long time, Immigration Judges may have to apply immigration laws that were on the books before major immigration reforms in the mid-1990s. Applicants from Guatemala, El Salvador, and former Soviet Bloc countries who show that they meet certain pre-1996 criteria may apply for suspension of deportation under the 1997 Nicaraguan Adjustment and Central American Relief Act (NACARA). A smaller number of immigrants are eligible for suspension of deportation, the predecessor to cancellation of removal.

Immigration Court records show that Immigration Judges considered 1,178 applications for suspension of deportation under NACARA in the past four years, and just 416 applications for the more general pre-1996 suspension of deportation.

Finally, one of the rarest forms of relief is known as "registry." Immigrants who entered the United States before January 1, 1972 and have remained in the country since that time, regardless of legal status, may be eligible to receive a green card immediately. This also can effectively end the deportation process. In the data for this report, TRAC found 26 applications for registry.

Adjustment of Status

Individuals who are in the United States on a temporary (or non-immigrant) visa can, under certain circumstances, apply for a permanent (or immigrant) visa and become a Legal Permanent Resident without leaving the country. This is known as adjustment of status. Some immigrants facing deportation can request adjustment of status from an Immigration Judge, which allows the applicant to obtain a green card, so long as they meet the criteria for the visa. If granted, adjustment of status effectively ends the removal process.

The most common type of adjustment of status is adjustment under section 245 of the Immigration and Nationality Act, but a second form under section 202 also exists due to NACARA (mentioned above). Adjustment under 202 may be possible if applicants from Nicaragua or Cuba show that they meet certain pre-1996 criteria for obtaining a green card.

For cases completed during the current administration, immigrants facing deportation filed 18,482 applications for adjustment of status (under 245). Among applications for deportation relief beyond asylum, adjustment of status is one of the more commonly requested forms of relief, second only to cancellation of removal.

Immigrants facing deportation filed just 234 applications for adjustment of status under NACARA.

Waivers

Congress created a variety of waivers that allow Immigration Judges to set aside certain negative factors against people who are facing deportation and may enable them to stay in the U.S. or to apply for other forms of relief mentioned above. Waiver applications as a group were considered in 6,815 cases completed during the Trump years. This group comprised the fourth most frequent type of relief application.

The most common waiver application is a waiver for prior criminal conduct. Many forms of relief discussed above are unavailable to immigrants who have committed certain crimes. However, if an Immigration Judge approves a waiver for prior criminal conduct, this barrier to relief is eliminated, making it possible for the immigrant to apply for one of the other forms of relief that may terminate the deportation process. Like other forms of relief, the criminal conduct waiver has two types: the current version identified by its section number 212(h), and an earlier variant for criminal convictions that took place before 1996 identified by its section number 212(c).

During the Trump administration, Immigrant Judges considered a total of 4,536 applications for criminal conduct waivers, including 2,956 applications for current 212(h) criminal conduct waivers and 1,580 applications for the older 212(c) criminal conduct waivers.

Immigration Court data also include several additional types of waivers. There were 1,253 applications to waive a past misrepresentation under section 237(a)(1)(H) of the law. Then there were 678 waiver applications for "visa fraud" which allows applicants who obtained a visa that they were not actually eligible for to keep the visa in rare circumstances. There were also 308 applications for a "waiver of inadmissibility of a refugee." When granted, this allows a refugee who is facing deportation due to a criminal conviction to adjust status (see above) to a Legal Permanent Resident. There were finally 40 applications for a waiver of a defective visa. This waiver known simply as 212(k)—which corresponds to section 212(k) of the National Immigration Act—allows some applicants who obtained a visa they were not eligible for without fraud to keep the visa, which may end the deportation process.

Other Less Common Types of Relief

The immigration laws passed by Congress also include a number of other types of relief which are currently used less frequently. For example, a "withdrawal of request for admission" allows immigrants who are in the jurisdiction of the Immigration Court and are requesting entry to the United States to leave the country instead of risking a deportation order. Immigration Judges considered a total of 1,379 requests for this form of relief.

A "request for removal of conditional basis of LPR" allows applicants who came to the United States on a marriage-based visa and are now facing deportation because they are no longer married to remain in the United States due to hardship. Immigration Judges received a total of 1,234 requests for this form of relief.

An "application for permission to reapply" allows some immigrants who have been deported to apply to come to the United States lawfully. Immigration Judges received a total of 49 requests for this form of relief.

Other Avenues of Relief

This report focuses on applications for relief from deportation that are before the Immigration Court. However, relief applications can be submitted to other agencies.

A number of different types of relief applications can be filed with the U.S. Citizenship and Immigration Services (USCIS), an agency within the Department of Homeland Security. Under the law, USCIS also has the authority to decide many types of relief. For example, USCIS decides many asylum cases. They also decide applications for relief from deportation under the Violence Against Women Act (VAWA), applications for U visas (which provides deportation relief to some victims of crime), and T visas (which provides deportation relief to some victims of human trafficking). USCIS also decides applications for Special Immigrant Juvenile Status (SIJS), which provides relief for minors who have experienced abuse, abandonment, or neglect and cannot be reunited with their parents. In some cases, USCIS cannot make a final decision on an application when the applicant immigrant is facing deportation in Immigration Court unless the Court grants administrative closure. For more information on administrative closure, see our previous report here.

This report also does not include applications for relief that are submitted directly to Immigration and Customs Enforcement (ICE). For instance, if approved by ICE, applications for stays of removal can result in ICE voluntarily postponing the execution of a deportation order in certain cases.

Finally, we do not include applications for voluntary departure in this report because voluntary departure requires the individual to leave the country. A grant of voluntary is beneficial in that it allows the individual an opportunity to leave the country on their own without receiving an actual deportation order. Thus, these individuals are often not legally barred from reentry for a number of years as occurs with a deportation order. However, we exclude voluntary departure from our study of relief despite its benefits for applicants because the practical outcome of voluntary departure is still a departure.

Footnotes

^[1] This report is written for a broad audience. It uses the terms "deportation cases" and "deportation proceedings" with their common layman's meaning. However, the term deportation, in fact, has a specific legal meaning that is more precise than its colloquial use. More specifically, this report includes three separate and distinct classes of cases—removal, deportation and exclusion—all of which are different case types currently handled by the Immigration Court. Prior to 1996, "deportation proceedings" referred to a specific kind of legal proceeding that was distinct from "exclusion proceedings." In 1996 as part of a series of broad legislative changes, Congress combined both types of proceedings and renamed them "removal proceedings." Since this report covers the period of the Trump Administration, over 99 percent of the cases covered in this report are removal proceedings and less than 1 percent are these older types. However, because it is still possible to have a client whose case is old enough to be in deportation proceedings rather than removal proceedings, specialists in the field take care to use "removal proceedings" to refer to the most common form of modern Immigration Court proceedings, even though in common parlance "deportation" and "removal" have congruent meanings and most non-specialists use them interchangeably. Note that the Immigration Court also hears other types of proceedings (e.g. credible fear proceedings). Cases covered in this report exclude these other special types of cases which are also heard by the Court.

^[2] TRAC would like to thank Immigration Attorney Brian Hoffman for reviewing a draft of this report and providing valuable feedback. TRAC takes responsibility for any errors in the report.

^[3] If asylum is denied, the tool also reports whether some other form of relief was granted. But cases covered are limited to those where the person applied for asylum.

^[4] This report covers any asylum applications in the Immigration Court, including both defensive and affirmative asylum claims. In the latter situation, the asylum application was filed with USCIS. If not approved, the matter can be transferred to the Immigration Court where the asylum claims are reconsidered.