Deportation Defense

Navigating deportation defense proceedings requires a strategic approach since this is a serious process that determines whether an individual will be allowed to remain in the United States or if they need to return to their country of origin. With the government vigorously seeking removal, individuals facing deportation often need solid legal support. Understanding how the proceedings work, your rights, and available defenses is crucial in building a solid strategy that protects your future in the United States. 

Strategies Utilized In Defense Of Deportation

1. Adjustment of Status

If someone is eligible for a Green Card through family, employment, or other categories, they may seek adjustment of status. This allows them to apply for permanent residency and potentially stay in the United States. Adjustment of status is a legal process that allows individuals to apply for lawful permanent residency (a Green Card) while remaining in the U.S. rather than returning to their home country to complete visa processing. In deportation defense proceedings, adjustment of status can be used as a defense to prevent removal. 

It is crucial to be well-prepared when pursuing an adjustment of status in deportation defense proceedings because the process can be complex. Understanding eligibility requirements, gathering supporting evidence, and presenting a solid case are essential.

2. Asylum and Withholding of Removal

People fearing persecution in their home countries due to race, religion, nationality, political opinion, or membership in a particular social group can apply for asylum or withholding of removal. They must demonstrate that they would face a credible threat to their safety if they were to return to their country.

To qualify for asylum, you must prove that you are unable or unwilling to return to your home country due to past persecution or a well-founded fear of future persecution based on race, religion, nationality, political opinion, or membership in a particular social group. You generally need to apply for asylum within one year of your arrival in the U.S. There are exceptions to this rule, such as significant changes in circumstances. You apply by submitting Form I-589. During the process, you will have an interview with an asylum officer or, if you’re in removal proceedings, a hearing before an immigration judge. If granted asylum, you gain the right to live and work in the U.S., apply for a green card after one year, and potentially sponsor family members.

Like asylum, withholding of removal requires that you prove a fear of persecution based on the same protected grounds. However, the standard is higher: You must show that it is “more likely than not” that you would face persecution. There is no filing deadline for withholding of removal. It protects you from deportation to your home country but does not offer a direct path to permanent residency. It also does not allow you to sponsor family members.

Asylum offers more benefits than withholding of removal, such as a direct path to permanent residency. Withholding of removal applies to those who might be barred from asylum, like those who missed the one-year filing deadline. Both forms of relief require substantial evidence and a well-prepared application.

3. Cancellation of Removal 

Cancellation of removal is a  form of relief available to non-citizens in deportation defense proceedings, enabling some to avoid removal and secure lawful status in the U.S. There are two primary categories of cancellation of removal:

  • Lawful Permanent Residents (LPRs): To qualify, you must have had lawful permanent resident status for at least five years, resided in the U.S. continuously for at least seven years after lawful admission, and not have been convicted of an aggravated felony. If granted, an LPR may retain their green card.
  • Non-Lawful Permanent Residents (Non-LPRs): You must have been continuously present in the U.S. for at least ten years, demonstrate good moral character during that time, and prove that removal would result in exceptional and extremely unusual hardship to your U.S. citizen or lawful permanent resident spouse, parent, or child. If granted, a non-LPR may receive lawful permanent resident status. Keep in mind that there are annual caps on the number of non-LPR cancellations that can be granted.

4. Waivers for Criminal Convictions or Fraud

Waivers might be available for certain criminal convictions or misrepresentation if removal would result in significant hardship to a qualifying relative who is a U.S. citizen or permanent resident.

Certain waivers are available in the U.S. immigration system to help individuals with criminal convictions, including fraud, avoid deportation. This option could be more straightforward but requires careful planning and preparation. 

5. Voluntary Departure

As a last resort, voluntary departure allows the individual to leave the U.S. voluntarily rather than being forcibly removed, which could impact future re-entry eligibility.

6. U Visas and VAWA Petitions

U visas and VAWA visas can be powerful tools in deportation defense, offering eligible individuals legal protection and a pathway to lawful status in the United States.

  • U Visas are for victims of certain crimes who have suffered substantial physical or mental abuse and are willing to assist law enforcement.
  •  The Violence Against Women Act (VAWA) allows abused spouses, children, or parents of U.S. citizens or permanent residents to self-petition for status.

7. Prosecutorial Discretion and Motions To Reopen Or Reconsider

Prosecutorial discretion allows government attorneys to prioritize cases for removal and exercise discretion to delay or cancel removal proceedings based on humanitarian considerations or policy priorities. In addition, if new evidence surfaces or there’s an error in the original decision, one can file a motion to reopen or reconsider the case.

8. Appeals or a Stay Of Removal

Decisions by an immigration judge can be appealed to the Board of Immigration Appeals (BIA). Beyond that, federal circuit courts may also review cases. A stay of removal prevents the government from executing a removal order while further action is pursued, often pending the outcome of appeals or other applications.

Takeaway

In developing a deportation defense, it is crucial to consider the individual’s history, ties to the United States, and specific grounds for removal. A thorough evaluation often reveals opportunities to develop a beneficial strategy based on the above options and the individual’s specific circumstances. Each case is unique, and an attorney must thoroughly assess eligibility and strategic value in deportation defense cases. Working closely with law enforcement and gathering solid evidence is crucial in securing these visa types. Rahimi Law Firm PC will fight tenaciously to obtain immigration relief and legal status for our clients. Contact our offices in Great Neck and Manhattan so that we may advocate for you.