Frente a deportation from the United States can be a daunting and complex legal situation. However, individuals in this position have several legal options and strategies available to challenge their removal and potentially remain in the country. Understanding these options is crucial for anyone navigating the deportation defense process.
The deportation process, officially known as removal proceedings, begins when the Department of Homeland Security (DHS) issues a Notice to Appear (NTA) to a non-citizen. This document outlines the reasons why the government believes the individual should be removed from the United States. Upon receiving an NTA, it is essential to act quickly and strategically to mount an effective defense against deportation.
One of the primary legal options available is to challenge the grounds for removal stated in the NTA. This involves carefully examining the allegations and determining if there are any factual or legal errors. In some cases, the government may not have sufficient evidence to support the charges, or there may be procedural defects in how the NTA was issued or served. If such issues are identified, it may be possible to file a motion to terminate the proceedings, effectively ending the deportation case.
For individuals who have been lawful permanent residents (green card holders), there may be opportunities to apply for cancellation of removal. This form of relief is available to long-term permanent residents who can demonstrate that they have been continuously present in the United States for at least seven years, have held permanent resident status for at least five years, and have not been convicted of an aggravated felony. Additionally, they must show that their removal would result in exceptional and extremely unusual hardship to a qualifying U.S. citizen or permanent resident spouse, parent, or child.
Non-permanent residents may also be eligible for a different form of cancellation of removal if they can prove continuous physical presence in the United States for at least ten years, good moral character during that time, and that their removal would result in exceptional and extremely unusual hardship to a qualifying U.S. citizen or permanent resident relative. This form of relief is more challenging to obtain due to the higher standard of hardship required and the limited number of grants available each year.
Another critical legal option for those facing deportation is to apply for asylum or withholding of removal. These forms of relief are available to individuals who fear persecution in their home country based on their race, religion, nationality, membership in a particular social group, or political opinion. To be granted asylum, an applicant must generally file within one year of entering the United States, unless they can demonstrate changed or extraordinary circumstances that justify a late filing. Withholding of removal has a higher standard of proof but does not have the one-year filing deadline.
For individuals who fear torture in their home country, protection under the Convention Against Torture (CAT) may be available. This international treaty, which the United States has ratified, prohibits the return of individuals to countries where they are more likely than not to face torture. Unlike asylum, CAT protection does not require that the feared harm be based on a protected ground, but it does require a higher likelihood of harm.
In some cases, individuals facing deportation may be eligible to adjust their status to that of a lawful permanent resident. This option is available to those who have an approved immigrant petition and an immediately available visa number. Common scenarios include marriage to a U.S. citizen or being the beneficiary of an approved employment-based petition. Adjustment of status can be a powerful tool in deportation defense, as it allows the individual to obtain permanent residency and terminate the removal proceedings.
For those who entered the United States on a fiancé(e) visa (K-1) but did not marry their U.S. citizen petitioner, there may be an opportunity to seek a waiver of the foreign residence requirement. This waiver, if granted, would allow the individual to adjust status based on a marriage to a different U.S. citizen or permanent resident, provided they can demonstrate that their removal would result in extreme hardship to their qualifying relative.
Prosecutorial discretion remains an important consideration in deportation cases. While not a formal form of relief, immigration authorities have the discretion to terminate or administratively close proceedings in cases they deem low priority. Factors such as length of residence in the United States, family ties, community involvement, and lack of criminal history can be persuasive in seeking prosecutorial discretion.
For individuals who have been victims of certain crimes in the United States, U nonimmigrant status (U visa) may be an option. This visa is available to those who have suffered substantial physical or mental abuse as a result of being a victim of qualifying criminal activity and who have been helpful to law enforcement in the investigation or prosecution of that crime. Similarly, victims of human trafficking may be eligible for T nonimmigrant status (T visa).
In cases where an individual has been a victim of domestic violence by a U.S. citizen or permanent resident spouse or parent, relief may be available under the Violence Against Women Act (VAWA). This provision allows victims to self-petition for permanent residency without the abuser’s knowledge or cooperation.
For those who have lived in the United States for many years and can demonstrate good moral character, registry may be an option. This little-known provision of ley de inmigración allows individuals who entered the United States before January 1, 1972, and have continuously resided in the country since then, to apply for permanent residency, regardless of their current immigration status.
In some cases, individuals may be eligible for Temporary Protected Status (TPS) if they are nationals of certain countries designated by the Secretary of Homeland Security due to ongoing armed conflict, environmental disaster, or other extraordinary conditions. While TPS is temporary, it can provide protection from deportation and work authorization for extended periods.
For young people who were brought to the United States as children, Deferred Action for Childhood Arrivals (DACA) may provide temporary relief from deportation and work authorization. While DACA does not confer lawful status, it can be a valuable tool in deportation defense for eligible individuals.
In situations where an individual has a prior order of deportation or removal, it may be possible to file a motion to reopen the case. This legal maneuver can be particularly effective if there have been significant changes in the individual’s circumstances or in the law since the original order was issued. Motions to reopen are subject to strict time and numerical limitations, but these can be overcome in certain circumstances, such as changed country conditions for asylum seekers.
For those who fear persecution or torture in their home country but are subject to certain bars to asylum (such as the one-year filing deadline or certain criminal convictions), withholding of removal under INA § 241(b)(3) may still be available. This form of relief, while not as comprehensive as asylum, does prevent deportation to the country where the individual fears harm.
In cases where an individual is facing deportation due to criminal convictions, there may be opportunities to challenge the immigration consequences of those convictions. This can involve seeking post-conviction relief in criminal court, such as vacating a conviction or modifying a sentence, which may then impact the individual’s removability or eligibility for relief in immigration court.
For individuals who have been lawfully admitted to the United States but are facing deportation due to criminal convictions, a 212(h) waiver may be available. This waiver can forgive certain criminal grounds of inadmissibility, allowing the individual to adjust status or avoid deportation. The waiver requires demonstrating extreme hardship to qualifying U.S. citizen or permanent resident relatives.
In some cases, individuals may be eligible for a 212(c) waiver, which was a form of relief available to lawful permanent residents with certain criminal convictions prior to April 1, 1997. While this provision has been repealed, it may still be available to individuals whose convictions predate the repeal and who meet certain other criteria.
For those facing deportation due to fraud or misrepresentation, a 237(a)(1)(H) waiver may be available. This waiver can forgive fraud or misrepresentation at the time of admission or adjustment of status for individuals who have qualifying U.S. citizen or permanent resident relatives.
In cases where an individual is facing deportation but has cooperated with law enforcement in the investigation or prosecution of criminal activity, they may be eligible for S nonimmigrant status (S visa). This “snitch visa” is available to informants and witnesses who provide critical, reliable information to law enforcement agencies.
For individuals who have renounced their U.S. citizenship but now face deportation from the United States, there may be an opportunity to argue that the renunciation was not voluntary or was made under duress. In such cases, it may be possible to challenge the validity of the renunciation and assert a claim to U.S. citizenship as a defense against deportation.
In some instances, individuals facing deportation may be able to argue that they have a claim to U.S. citizenship through various means, such as derivation from a parent’s naturalization or acquisition at birth abroad to U.S. citizen parents. Establishing U.S. citizenship would provide an absolute defense against deportation.
For those who have been ordered deported in absentia (without being present at their hearing), it may be possible to file a motion to rescind the in absentia order. This can be done by demonstrating that the individual did not receive proper notice of the hearing or that exceptional circumstances prevented their attendance.
In cases where an individual has been detained by immigration authorities pending their removal proceedings, seeking release on bond can be a crucial step in mounting an effective deportation defense. Being free from detention allows individuals to more easily gather evidence, meet with their abogados, and prepare their cases.
For individuals who have been victims of notario fraud or ineffective assistance of counsel in their immigration proceedings, it may be possible to reopen their cases based on these grounds. This can provide an opportunity to present a proper defense against deportation with competent legal representation.
In some situations, individuals facing deportation may be eligible for private bills introduced by members of Congress. While rare, these bills can provide relief in exceptional cases where no other form of relief is available and where deportation would result in extreme hardship.
For individuals who have been granted Temporary Protected Status (TPS) but are now facing deportation due to criminal convictions or other issues, it may be possible to argue that the TPS designation provides a defense against removal, at least to the country covered by the TPS designation.
In cases where an individual is facing deportation but has strong ties to the United States and no criminal history, it may be possible to seek deferred action as a form of prosecutorial discretion. While not a formal immigration status, deferred action can provide temporary protection from deportation and, in some cases, work authorization.
For those facing deportation who have pending applications for immigration benefits with U.S. Citizenship and Immigration Services (USCIS), it may be possible to seek administrative closure of the removal proceedings. This would allow the individual to pursue their application with USCIS without the pressure of ongoing deportation proceedings.
In some instances, individuals facing deportation may be able to argue that their removal would violate international human rights treaties to which the United States is a party. This can include arguments based on the right to family unity or the best interests of U.S. citizen children who would be affected by their parent’s deportation.
For individuals who have been victims of human trafficking, in addition to potential eligibility for T nonimmigrant status, there may be other forms of immigration relief available, such as Continued Presence or parole. These options can provide protection from deportation while the individual cooperates with law enforcement investigations.
In cases where an individual is facing deportation but has a pending application for naturalization, it may be possible to seek termination of the removal proceedings to allow USCIS to adjudicate the naturalization application. This strategy, known as a Matter of Acosta Hidalgo motion, can be particularly effective for long-term permanent residents.
For those facing deportation who fear persecution or torture in their home country but are barred from asylum and withholding of removal due to particularly serious crimes, deferral of removal under the Convention Against Torture may still be available. This form of relief has no bars based on criminal convictions but requires meeting a high standard of proof regarding the likelihood of torture.
In some cases, individuals facing deportation may be able to argue that their removal would violate their constitutional rights. This can include arguments based on due process violations, equal protection concerns, or other constitutional issues that may have arisen during the immigration process.
For individuals who have been granted asylum or refugee status but are now facing deportation due to criminal convictions or other issues, it may be possible to argue that they should not be returned to their country of origin based on the principle of non-refoulement. This international law principle prohibits the return of individuals to countries where they face persecution.
In situations where an individual is facing deportation but has strong equities in the United States, such as long-term residence, family ties, and community involvement, it may be possible to seek a private immigration bill from Congress. While extremely rare, these bills can provide relief in exceptional cases where no other form of relief is available.
For those facing deportation who have been victims of workplace exploitation or labor trafficking, there may be opportunities to seek immigration relief through U nonimmigrant status or other labor-based protections. Cooperation with Department of Labor investigations can sometimes lead to favorable exercises of prosecutorial discretion in removal proceedings.
In cases where an individual is facing deportation but has a pending application for Special Immigrant Juvenile Status (SIJS), it may be possible to seek continuances or administrative closure of the removal proceedings to allow for the adjudication of the SIJS petition. This form of relief is available to certain children who have been abused, abandoned, or neglected by one or both parents.
For individuals facing deportation who have served in the U.S. military, there may be additional options for relief, including expedited naturalization o parole in place for family members. Military service can also be a strong positive factor in seeking prosecutorial discretion or other forms of relief.
In conclusion, while facing deportation from the United States is a serious and often frightening situation, there are numerous legal options and strategies available to challenge removal. The key to a successful deportation defense lies in thoroughly examining all potential avenues of relief, gathering strong supporting evidence, and presenting a compelling case before the immigration court or relevant authorities. Given the complexity of ley de inmigración and the high stakes involved in deportation cases, it is crucial for individuals facing removal to seek the assistance of experienced immigration attorneys who can navigate the intricacies of the legal system and advocate effectively on their behalf.
Website citations used for this article:
- https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/questions-and-answers-credible-fear-screening
- https://www.justice.gov/eoir/page/file/1480826/dl
- https://www.americanimmigrationcouncil.org/research/removal-system-united-states-overview
- https://www.nolo.com/legal-encyclopedia/immigration-court-defenses-avoid-deportation
- https://www.ilrc.org/removal-defense
- https://www.boundless.com/immigration-resources/navigating-us-immigration-court/
- https://theappellatelawfirm.com/blog/deportation-order-appealed-appellate-law-firm/
- https://www.findlaw.com/immigration/deportation-removal/overview-of-removal-procedures.html
- https://help.asylumadvocacy.org/faqs-immigration-court/
- https://www.uscis.gov/forms/all-forms/questions-and-answers-appeals-and-motions
- https://uscode.house.gov/view.xhtml?edition=prelim&num=0&req=granuleid%3AUSC-prelim-title8-section1229a
- https://www.nilc.org/wp-content/uploads/2015/12/detentionremovalguide_2006-02.pdf
- https://www.vera.org/ending-mass-incarceration/reducing-incarceration/detention-of-immigrants/advancing-universal-representation-initiative/state-and-local-deportation-defense-information-hub
- https://ethiopianattorney.com/deportation-defense-strategies-for-success/
- https://www.freedomforimmigrants.org/resources
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