For many immigrants in the United States, the fear of removal (deportation) is a serious concern, especially when their immigration case is pending. A common question is: Does a pending immigration case protect someone from deportation? The short answer is not necessarily. The specific type of case and individual circumstances play a crucial role in determining whether removal can be delayed or prevented. In this blog, we will explore the different situations where a pending immigration case may or may not offer protection from removal.
Understanding Removal Proceedings and Immigration Applications
To understand how a pending case interacts with removal (deportation), it’s important to distinguish between two scenarios:
- Individuals who are NOT yet in removal proceedings but have filed an immigration application with USCIS.
- Individuals who are already in removal proceedings before an immigration judge and are applying for relief.
Each scenario has different legal implications.
Scenario 1: If You Are Not Yet in Removal Proceedings
If you are not currently in removal proceedings but have a pending immigration application, your status in the U.S. is important:
Pending Applications That Typically DO NOT Protect You from Removal
Certain applications filed with U.S. Citizenship and Immigration Services (USCIS) do not automatically provide protection from deportation:
- Adjustment of Status (Form I-485) – Applying for a green card does not prevent ICE (Immigration and Customs Enforcement) from initiating removal proceedings if you are out of status.
- Work Permits (EADs) Based on a Pending Application – Having a pending work permit or receiving one does not guarantee that you won’t be placed in removal proceedings.
- Temporary Protected Status (TPS) – A pending TPS application does not protect you unless it is granted.
- Deferred Action for Childhood Arrivals (DACA) – A pending or even approved DACA request does not provide a legal status or guarantee protection from removal.
Even with a pending immigration case, ICE can still issue a Notice to Appear (NTA) and place you in removal proceedings.
Situations Where Pending Applications May Offer Some Protection
There are certain applications that may influence ICE’s discretion in initiating removal:
- Pending U Visa or T Visa (Victims of Crimes or Human Trafficking) – USCIS generally advises ICE not to remove applicants with pending U or T visa applications.
- VAWA (Violence Against Women Act) Self-Petitions – ICE may exercise discretion to delay or cancel removal for applicants with strong pending cases.
- Parole Requests (e.g., Humanitarian Parole) – If granted, this can temporarily allow the individual to remain in the U.S.
However, until an application is approved, there is no absolute protection from removal.
Scenario 2: If You Are Already in Removal Proceedings
If you are already in immigration court proceedings, you may be applying for relief to avoid deportation. In this situation, your pending case delays removal until a final decision is made.
Common Forms of Relief That Delay Removal While Pending
- Defensive Asylum (Form I-589)
- If you apply for asylum while in removal proceedings, you cannot be deported until your case is fully adjudicated.
- If denied, you may have an opportunity to appeal.
- Cancellation of Removal (EOIR-42A or EOIR-42B)
- If you meet certain conditions, you can request cancellation of removal before an immigration judge.
- This option is available for certain lawful permanent residents (LPRs) and non-LPRs with strong ties to the U.S.
- Motions to Reopen or Reconsider
- If a previous case was denied, filing a motion to reopen based on new evidence can delay deportation while the motion is pending.
- Appeals to the Board of Immigration Appeals (BIA)
- If an immigration judge orders removal, filing an appeal may automatically stay (pause) removal in some cases.
When Removal Can Proceed Despite a Pending Case
- If your case is denied and you do not appeal, ICE can execute a removal order.
- Voluntary Departure – If an immigration judge grants voluntary departure and you fail to leave, removal can proceed.
- Certain Criminal Convictions – If you are subject to mandatory detention, your pending case may not prevent deportation.
Does an Immigration Judge or ICE Have Discretion?
In many cases, ICE has prosecutorial discretion to delay or close removal proceedings, especially in cases involving:
- Humanitarian factors (e.g., medical issues, family ties)
- Pending U Visa, T Visa, or VAWA applications
- Low-priority enforcement cases (e.g., long-time residents with no criminal history)
However, discretion is not guaranteed, and every case is evaluated individually.
Key Takeaways: Does a Pending Case Stop Deportation?
- A pending case does NOT automatically protect you from removal.
- Certain applications delay removal while pending, such as asylum, cancellation of removal, or an appeal.
- ICE retains discretion to initiate removal even if you have a pending application with USCIS.
- If you are already in removal proceedings, you may be eligible for relief from deportation, but it depends on your case.
- Seeking legal assistance from an immigration attorney is crucial if you face removal.
What Should You Do If You Are at Risk of Removal?
If you have a pending case but are concerned about removal, consider the following steps: ✔ Consult an Immigration Lawyer – They can advise on available defenses.
- Check Your Case Status – Ensure your case is still active and respond to any requests for evidence.
- Avoid Missing Deadlines – Failing to file paperwork on time can lead to automatic denials.
- Understand Your Rights – If ICE detains you, you have the right to remain silent and request an attorney.
Every immigration case is unique, and having professional guidance can make the difference between staying in the U.S. or facing removal.
Need Immigration Help?
At Richards and Jurusik Immigration Law, we specialize in defending immigrants from removal and helping them navigate their cases effectively. Contact us today for a consultation to discuss your options.
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