Facing deportation can be a terrifying experience, but don’t worry: there is hope. Many individuals have successfully fought removal proceedings by using various legal strategies. This informative guide explores 10 common defenses that may help you or a loved one remain in the United States legally.
Asylum is one of the most common forms of protection against deportation in the U.S. This defense is reserved for those who have fled persecution or fear future persecution in their home country. If you are in removal proceedings and fear returning to your home country due to persecution or harm, you may be eligible to apply for defensive asylum. It is important to keep in mind that you can exercise your right to assert a claim for asylum during the removal process, and your immigration judge must allow you to file an application for asylum.
Withholding of Removal Similar to asylum, but with a higher burden of proof. Applicants must show it's more likely than not they'll face persecution if returned to their home country. Unlike asylum, there's no one-year filing deadline, and it doesn't lead to permanent residency. To find out if withholding of removal is the right deportation defense for you, consult with an experienced immigration attorney.
If an individual is eligible for a green card through family, employment, or other means, they may be able to adjust their status and avoid deportation. This process is available to those who entered the country legally, have an immediate relative who is a U.S. citizen or qualify through employment, and are admissible to the U.S. or eligible for a waiver. In removal proceedings, it's often combined with a motion to terminate proceedings. These actions could potentially halt the removal process.
The Convention Against Torture (CAT) offers a lifeline for those who fear torture in their home country. Unlike asylum, CAT protection doesn't require proof of persecution based on a protected ground. Instead, applicants must show it's more likely than not they would be tortured if returned. In these cases, the torture must be by the government or with the acceptance of the government. While it doesn't lead to permanent residency, it effectively prevents deportation to the country where torture is likely.
If you are able to prove ten years’ physical presence in the United States, and you demonstrate that being removed would cause "exceptional and extremely unusual hardship" to your "qualifying relative" (a spouse, parent, or child who is a U.S. citizen or permanent resident) - you may be able to obtain a green card and avoid deportation. The ten year presence must be uninterrupted by any single absence from the U.S. of 90 days or more, or a total of 180 days of absences during the 10-year period. Further, the applicant must also demonstrate good moral character, such as refraining from certain crimes and tax compliance.
Cancellation of Removal under the Violence Against Women Act (VAWA) is a special form of immigration relief designed to protect victims of domestic violence. Despite its name, this provision is available to both women and men. If you have been a victim of battery or extreme cruelty by a U.S. citizen or lawful permanent resident spouse or parent, you may be eligible for this protection. Additional requirements for this defense include three years of physical presence in the U.S. as well as good moral character.
In some cases, the immigration authority in charge of your case or any other government attorney may exercise his or her discretion to terminate removal proceedings against a certain individual. This concept recognizes that the government has limited resources and must prioritize certain cases over others. When exercising PD, officials may consider a number of factors including the length of presence in the U.S., health conditions, age, and family ties to U.S. citizens of permanent residents.
If you were brought to the United States as a child, you could be eligible for Deferred Action for Childhood Arrivals, also known as DACA. This policy, implemented in 2012, provides temporary relief from deportation and work authorization for certain young people who were brought to the United States as children. In order to be eligible for DACA, individuals must meet certain criteria, including requirements regarding age, time of arrival and immigration status. For individuals who believe they might qualify for DACA, it's crucial to consult with an experienced immigration attorney to understand if this deportation defense suits their circumstances.
Deferred action is a type of Prosecutorial Discretion (PD) that postpones an individual’s deportation proceedings. Deferred action does not provide a path to permanent residency or citizenship. In other words, while it can be renewed, it is considered a temporary measure. Deferred action is typically granted on a case-by-case basis, considering various factors such as the individual's ties to the community, criminal history, and other circumstances.
Voluntary Departure is an option in U.S. immigration law that allows an individual who is in removal proceedings to leave the country voluntarily, rather than being formally deported. It should be noted, however, that this option is not available in all cases of deportation, and the individual must meet certain criteria in order to qualify for voluntary departure. For example, you will not be eligible to apply for voluntary departure if you have been convicted of an aggravated felony or are deportable for national security reasons.
These 10 common defenses to deportation offer hope and potential pathways for individuals facing removal proceedings. However, each case is unique, and the success of any defense strategy depends on individual circumstances. If you or a loved one is facing deportation, don't face it alone. Seek personalized legal support with Attorney At Law today.
