Deportation Defense
Deportation defense for undocumented or out-of-status immigrant aliens in the United States
Living in the United States without proper immigration papers or status may result in deportation. However, there are rights and potential defenses to avoid being deported from the country. The most important thing is not to give up if placed in removal proceedings. There are several possible ways to fight to remain in the U.S. legally.
One option is to apply for some immigration relief or benefit allowing a lawful stay. That could include asylum if there is a well-founded fear of persecution in the home country or cancellation of removal if a U.S. resident, spouse, parents, or children has lived in the U.S. for many years and deportation would cause extreme hardship.
Other possibilities are adjusting status through a qualifying family member, protection under the Convention Against Torture, or for victims of domestic violence applying for relief under the Violence Against Women Act.
Challenge Removability Charges
When facing deportation proceedings, it may be possible to challenge the very grounds for removal presented by the government. At the first immigration court hearing, the charges of being removable or deportable will be stated.
Rather than admitting these charges immediately, one can deny them and make the government prove its case. That forces immigration authorities to provide solid evidence showing the individual is genuinely subject to removal under the law.
If they cannot meet this burden of proof, the immigration judge may have to terminate the removal case altogether. It is crucial not to make any false statements, as that could negatively impact eligibility for other forms of relief down the line.
Seek Relief from Removal
Even if the government establishes grounds for removal, various pathways exist to obtain relief and avoid deportation. The immigration judge should explain what options may apply based on one's specific situation.
Typical forms of relief include asylum for those fearing persecution in their home country, cancellation of removal for long-term residents with U.S. citizen relatives facing extreme hardship, and protection under the UN Convention Against Torture.
You should get help from an experienced immigration attorney to fully evaluate and present the most robust case for any relief that might apply.
Certain family members who are United States citizens or permanent residents can be provided with opportunities to obtain lawful immigration status and avoid removal. A U.S. citizen spouse, parent, or child over 21 years old may be able to sponsor their undocumented family member for a green card (permanent residency) through a process called adjustment of status.
There are also special provisions for abused spouses and children covered by the Violence Against Women Act (VAWA). Generally, the undocumented person must prove they entered the U.S. legally, though some exceptions exist.
Family-based petitions show strong ties within the country and extreme hardship to the U.S. citizen or permanent resident relative if the undocumented person is deported.
Asylum and Fear of Persecution
Individuals forced to flee their homeland countries due to persecution or a well-founded fear of future persecution may qualify for asylum protection in the United States. Persecution must be based on nationality, religion, political opinion, race, or membership in a particular social group.
Asylum allows someone to remain in the U.S. legally, work, apply for a green card after one year, and eventually pursue U.S. citizenship. The persecution feared must be by the government or groups the government cannot or will not control.
Preparing a solid asylum case with evidence of past harm or threats is crucial, as is articulating a genuine, credible fear of future harm if deported.
Convention Against Torture Protection
The United Nations Convention Against Torture provides a way to avoid removal from the United States for those facing torture in their home country.
To qualify, it must be more likely than not that the government or groups would torture the individual the government cannot control upon return. Unlike asylum claims, the reason for the potential torture does not matter - the key factor is simply establishing it is more probable than not that torture would occur.
While this form of protection allows someone to remain in the U.S., it does not lead to permanent resident status or the ability to travel internationally like asylum.
The Convention Against Torture has a very high legal bar to meet when it comes to proving the likelihood of future torture. Personal statements, expert testimony, human rights reports, and any other evidence documenting torture risks are essential.
Every detail showing why the home country's situation is so unsafe and why domestic authorities cannot stop the torture threat must be presented. Small mistakes can undermine the credibility of this high-stakes claim.
Having an experienced immigration lawyer prepare and argue a Convention Against Torture case dramatically improves the chances of securing this critical protection.
Cancellation of Removal Remedies
For long-term undocumented residents of the United States, cancellation of removal provides a pathway to obtaining legal permanent residency status (a green card).
Two main requirements must be met: continuous physical presence in the U.S. for at least ten years and proof that deportation or removal would result in severe and extreme hardship to citizens of the United States of America or lawful permanent resident spouse, parent, or child.
The hardship shown must go beyond the normal distress of deportation and family separation. Financial, emotional, medical, educational, and other impacts are considered.
Winning cancellation of removal essentially forgives the person's past unlawful status and allows them to remain in the country lawfully. It is an exceptionally beneficial form of immigration relief, but it also has strict eligibility criteria.
An undocumented person cannot have certain criminal convictions, must prove good moral character, and will have their entire history scrutinized. Preparing a robust cancellation case with extensive documentation and testimony about the qualifying hardship factors is critical.
Having an experienced immigration lawyer represent you significantly increases approval chances.
Violence Against Women Act Provisions
The Violence Against Women Act (VAWA) has special provisions allowing immigrant victims of domestic violence, sexual assault, or other abuse to self-petition for legal status without relying on their abusive U.S. citizen or permanent resident spouse or parent.
Both married and unmarried children of abusive citizens can qualify. The abuse does not need to be physical - emotional threats count. VAWA also provides pathways to cancel an existing removal case if the victim has been in the U.S. continuously for at least three years.
To pursue VAWA relief, extensive documentation proving the abuse and good moral character must be provided. That includes police reports, medical records, photographs, witness statements, etc.
Having family, friends, counselors, and advocates submit supporting letters helps meet the burden of proof. VAWA cases involving sensitive issues demand a trauma-informed approach, where a trustworthy lawyer can ensure the victim's rights and protections are secured throughout the process.
Voluntary Departure Considerations
Voluntary departure allows someone to leave the United States alone instead of being deported. It provides a way to avoid the penalties of a formal removal order, which can bar someone from re-entering the U.S. for years or even permanently.
To qualify, the undocumented individual must meet specific requirements and agree to depart within a set timeframe, usually a month or two. Failing to depart can worsen the situation.
While not a path to legal status, voluntary departure gives more time to get affairs in order before exit. It leaves open opportunities to potentially return legally someday through normal immigration channels.
This option works best when deportation seems inevitable, and other forms of relief are unlikely. A clean record with positive equities like long residence, employment, and family ties improves the chances of voluntary departure approval.
Requirements
The documents and evidence required can vary significantly depending on which specific form of relief or defense against deportation is being pursued, but some standard requirements include:
Age Requirements
For asylum claims based on persecution faced as a child, the persecution must have occurred before age 18.
There is no specific age requirement for canceling removal for non-permanent residents, but continuous residence of at least 10 years must be proven.
Nationality/Citizenship
Claims like asylum and protection under the Convention Against Torture require establishing nationality or citizenship ties to the country where persecution or torture is feared.
For family-based immigration benefits, the nationality of the U.S. citizen or permanent resident relative petitioning is relevant.
Documentary Evidence
Deferred Action and Prosecutorial Discretion
In limited cases, federal immigration authorities may exercise prosecutorial discretion by deferring action on a removal case. That means putting the deportation on hold indefinitely rather than executing a final order.
No legal status gets granted, but the person can temporarily remain without being actively pursued for removal. Employment authorization sometimes gets approved with deferred action.
To receive this discretionary benefit, the individual must demonstrate compelling reasons why removal is not an appropriate resolution. Factors like U.S. military service, longstanding community ties, medical issues, and sympathetic humanitarian factors are heavily considered.
Private Immigration Bills
In scarce circumstances, the U.S. Congress may pass a private immigration bill to provide legal status or prevent deportation for a specific person.
This exceptional relief is reserved for cases involving compelling personal stories that have generated substantial public and political support. If deported, the individual typically faces unusual hardship or need.
Introducing a private bill requires extensive preliminary work compiling evidence, garnering community backing, lobbying congressional representatives, and undergoing rigorous vetting. Most private bills seek green cards for those with no other options. A handful have halted active deportation cases.
Building a Robust Defense Strategy
Preparing a robust and comprehensive defense against deportation is essential. From the outset, gathering extensive documentation and evidence to support your case is critical. Essential items may include:
Immigration History: Obtain copies of applications, petitions, approvals, or denials related to previous immigration cases. It is valuable to have a clear record of all interactions with authorities.
Identity Documents: Secure birth certificates, passports, national IDs, and other documents definitively establish your identity and country of origin. These prove citizenship ties.
Entry Records: Evidence like entry stamps, I-94 cards, and any other papers showing your methods and dates of entry to the United States can help demonstrate eligibility requirements.
Employment and Tax History: Years of pay stubs, W-2 forms, financial records, and tax returns showcase your economic contributions and commitment to the country.
Hardship Factors: For some claims, you must prove extreme hardship through evidence like medical records, psychiatric evaluations, country conditions research, and specifics on U.S. citizen/resident relatives' situations.
Role of Immigration Attorneys
Having an experienced immigration lawyer represent you in deportation proceedings provides many crucial benefits. Attorneys understand the complex web of immigration laws and constantly evolving policies.
They can identify all potential forms of relief you may qualify for - options you may miss on your own. Lawyers also ensure you meet strict deadlines and evidentiary requirements. Through their legal expertise, they craft compelling arguments supported by the most robust possible documentation.
At hearings and interviews, attorneys vigorously advocate for your rights and present your best case. Their vast experience remains invaluable when confronted with challenging legal standards.
Immigration cases frequently involve high stakes with life-altering consequences. Retaining a trustworthy lawyer establishes an attorney-client relationship where all communications are confidential.
That enables candid disclosure of even sensitive details that impact your claim. Reliable attorneys provide guidance every step of the way and demystify the often bewildering process.
While representing yourself remains an option, the system's complexities and your future in this country may best be secured with professional legal representation.
Evidentiary Requirements and Burdens of Proof
The evidence and level of proof required in immigration cases depends on the dependent form of relief or defense being pursued. For some claims like asylum, you bear the burden of proving eligibility through extensive supporting documentation and testimony. This evidence must be credible and sufficient to meet the "reasonable possibility" standard.
Other remedies like cancellation of removal demand an even higher "preponderance of evidence" showing hardship to qualifying relatives. Still, other protections, like under the Convention Against Torture, have a stringent "more likely than not" evidentiary burden.
Regardless of the legal standard, providing inadequate or incomplete evidence frequently proves fatal to immigration cases. Common mistakes like lack of corroborating records, inconsistent statements, insufficient translations, and failure to comply with evidentiary rules can irreparably undermine claims.
Experienced attorneys ensure vital documents like birth/marriage certificates, criminal dispositions, financial records, medicals, and other paperwork are officially obtained and adequately submitted. They safeguard against evidentiary missteps that could jeopardize your case's approval.
Immigration Court Proceedings
The deportation or removal process begins with a Notice to Appear issued by immigration authorities. This document outlines the charges and reasons the government believes you are removable from the United States. Appearing at all scheduled immigration court hearings is mandatory to avoid potentially being ordered deported in absence.
Master Calendar Hearing: This initial hearing identifies the charges against you and begins determining what forms of relief you may qualify for. The immigration judge assigned to your case will ask whether you admit or deny the factual allegations and charges of removability.
Individual Merits Hearing: If removability is established, this final hearing allows you to present your entire case and eligibility for any applicable immigration benefits, such as asylum, cancellation of removal, adjustment of status, etc. All supporting evidence and witnesses are submitted.
The judge will consider legal arguments from the government's attorney and your representative throughout this adversarial court process. Having competent legal counsel thoroughly prepare your defense strategy and advocate persuasively on your behalf dramatically improves the odds of a positive outcome.
Preserving Rights and Appealing Decisions
If the immigration judge orders your removal after hearings, you may still have further legal recourse. Promptly reserving and exercising your right to appeal protects your ability to fight deportation through higher courts.
Appeals must follow strict filing deadlines, typically within 30 days of the judge's decision. Specific grounds for the appeal, like errors of law or fact, must be clearly articulated. New evidence enhancing your case may also be introduced at this stage.
The appeals process begins with a thorough review by the Board of Immigration Appeals (BIA), an administrative body that can dismiss or sustain the appeal. If unsuccessful, the final option is petitioning for review by the Federal Circuit Court of Appeals, which oversees your geographic region.
BIA and Circuit Court appeals require extensive legal briefings supported by case citations and documentary evidence bolstering your positions. Having an immigration lawyer with appellate experience provides strategic guidance and ensures your rights are vigorously defended through this complex process.
WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.
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