Those who have faced deportation proceedings in front of an immigration judge know how stressful the process can be. The government can be an intimidating and powerful foe. It’s imperative that anyone caught in the deportation process have an attorney in their corner. Since there may be opportunities to appeal the case to different entities within the immigration system, it is important to have a great deportation defense lawyer who can help you put up a competent defense.
This page was designed to help immigrants who might be facing deportation learn more about some of the legal defenses available, and perhaps decide if they should consult an attorney. The following topics are covered on this page:
- Causes for Deportation
- Relief Defenses
- Cancellation of Removal
- Waiver of Removal
- Deferred Action
- Adjustment of Status
- Should I Contact an Attorney for Deportation Defense?
While this page discusses certain legal subjects, nothing contained here is intended to be a substitute for speaking with an immigration lawyer. If you or a loved one is in the process of removal proceedings, contact our office to see how we can help.
Causes for Deportation
There are any number of reasons a foreign national might face deportation hearings including: overstaying a visa, entering the country illegally, misrepresentations made on visa documents, or being accused of committing a crime while in possession of a visa. Just because a person is accused of wrongdoing, such as making misrepresentations on a visa application, doesn’t mean that person is automatically guilty. In many cases, deportees have certain due process rights, just like a U.S. citizen who goes to court. For some, there are legal options and defenses available that can result in delay or cancellation of a deportation decision.
Grounds for Relief
Each deportation situation is as unique as the person facing removal. Read on to learn about some of the different deportation defenses available:
Cancellation of Removal
This type of defense is applied to lawful permanent residents (green card holders) whose lawful status may have lapsed. A person seeking cancellation of removal must establish “discretionary eligibility” for cancellation. In some cases, this must be done in front of an immigration judge.
Discretionary eligibility could include strong family ties in the U.S., or evidence of hardship to family ties in the event of deportation. Evidence attesting to good moral character, as well as employment history, might also help qualify an immigrant for cancellation.
In order to be eligible for a cancellation defense, the immigrant must have been lawfully admitted to the U.S. for a period of five years and must have lived in the U.S. for a continuous period of at least seven years. A lawful permanent resident who has served in active duty in the armed forces for at least 24 months could be exempt from the continuous residence rule.
Persons who have been convicted of an aggravated felony are not eligible for cancellation of removal. Such felonies include: murder, sexual abuse of a minor, drug trafficking, rape and other serious crimes.
Waiver of removal
In some cases, an immigrant who has gained entrance to the U.S. through misrepresentation or fraud on official applications, might be eligible to apply for a waiver of removal.
In order to qualify, the immigrant must have a relative in the U.S. who is either a citizen or lawful permanent resident. The judge may consider favorable factors such as: whether or not the immigrant was a long-time resident in the country, evidence of hardship to the immigrant’s family if deported, as well as the existence of property or business ties.
When considering whether or not to grant the waiver, an immigration judge may also consider the specific fraud or misrepresentation involved and the underlying circumstances. In addition, the judge can consider the seriousness of any recent criminal record, as well as other evidence of bad character.
In some cases, an alien who is caught smuggling persons into the U.S. may be eligible for a waiver of removal if the smuggling was done for humanitarian purposes, or to assure family unity. In smuggling cases, a waiver will only be granted if the smuggled person or persons is/are the smuggler’s spouse, parent, sons or daughters.
In 2012 President Obama announced he was using his executive authority to defer the deportation of some immigrants brought to the U.S. as children. The program, known as Deferred Action for Childhood Arrivals (DACA), allows qualifying immigrants to avoid deportation for up to two years.
In order to qualify for deferred action, an alien must have come to the U.S. before his or her 16th birthday, have been physically present in the country (and out of status) as of June 15, 2012, and continually resided in the U.S. since January 1, 2010. A person won’t be eligible for deferred action if they’ve been convicted of a felony, a significant misdemeanor (domestic violence, burglary, DUI, etc.), or pose a threat to national security.
In order to apply for deferred action, the foreign national must file a Consideration of Deferred Action for Childhood Arrivals (Form I-821D). This is filed through US Immigration and Customs Services (USCIS).
Adjustment of Status
Certain qualifying aliens might be able to avoid deportation by adjusting to lawful permanent resident status. A lawful permanent resident holds a green card and is able to live and work in the U.S. for up to 10 years.
Under provisions of the Violence Against Women Act (VAWA), eligible applicants can include persons who have been battered by a spouse, child or parent.
Asylum may be a great deportation defense. Some persons who enter the United States illegally do so because they are fleeing persecution in their home country. The Immigration and Nationality Act §101(a)(42) defines a refugee as a person outside of their country of nationality who is unable to return because of well-founded fear of persecution on account of their “race, religion, nationality, membership in a particular social group, or political opinion.”
An alien who is determined to be a refugee, and is inside the United States, or at a port of entry, can apply for asylum. Persons granted asylum are eligible to petition for their spouse and children to join them in the U.S. In addition, an asylum applicant is eligible to apply for work authorization if 150 days have passed since filing an asylum application. An asylee is eligible to apply for a green card one year after being granted asylum status.
In order to apply for asylum, a foreign national must file an Application for Asylum and for Withholding of Removal (Form I-589). This is filed with US Customs and Immigration Services (USCIS). If the case goes before an immigration judge, the applicant has due process rights and is allowed to present testimony in support of the claim that he or she is fleeing persecution.
Do I Need an Attorney for Deportation Defense?
A person who wishes to mount a deportation defense against deportation should hire an immigration lawyer. More than any other area of immigration law, an attorney is vital when going before an immigration judge or officer. While simple filing errors can result in removal from the country. A qualified deportation defense attorney will have your best interests in mind when dealing with a complex federal system in an adversarial court-like setting. If you have questions about the deportation process, contact our office to see how we can help.