8 Ways to Defend Against Deportation
If you have received a “Notice to Appear” in Immigration Court or if you have been given an “Immigration Hold” while in custody, you need to contact a lawyer as soon as possible. Experienced lawyers know various ways of defending you against deportation. Some of these ways are described here:
- Asylum, Withholding and CAT: If you fear that you are in danger in your home country, you may qualify for relief from removal based on asylum or other related grounds.
- Cancellation of Removal (for LPRs): If you have a green card but have committed a crime or otherwise have been placed into removal proceedings, find a lawyer immediately. You may qualify for Cancellation of Removal. The criteria are difficult to meet, but they include the following three basic requirements: (1) living in the US for 7 years since being legally admitted; (2) living for 5 years with permanent residence (green card) before committing a crime or getting into removal proceedings; and (3) never having been convicted of an “aggravated felony” for immigration purposes.
- Cancellation of Removal (for Non-LPRs): If you don’t have a green card or are undocumented, the law provides one way to avoid deportation, but it applies only in the rarest of instances. Among other requirements, the applicant must show that she has lived in the US for 10 years and that her deportation would cause “exceptional and extremely unusual hardship” to the her spouse, child, or parent who is a United States Citizen or permanent resident. Never apply for this without speaking to an experienced immigration attorney.
- U-Visas: It is important to remember that you can sometimes avoid deportation if you are legally eligible for a visa. One visa that commonly comes up in removal proceedings is the U-visa. The U-visa is specifically for people who (1) have been the victim of certain serious crimes, (2) have suffered serious and ongoing harm as a result, (3) have reported the crimes to the police, and (4) have cooperated in bringing the perpetrator to justice. Talk to a lawyer to see if you can attempt to apply for a U-visa. Remember that an important prerequisite to applying for a U-visa is cooperating with the police and the prosecution; it will be essential that they certify that you have been cooperative before you can obtain this visa.
- Adjustment of Status: If you are married to a US citizen or permanent resident, or if a family member has filed a petition for you, you might be eligible to apply for a green card directly. Depending on how you entered the United States, you might need to go back to your home country to process the green card, but if not, you might be eligible to “adjust your status” to permanent residence here in the United States. Talk to an attorney today to see whether or not you’re eligible.
- Voluntary Departure: If you have no other viable option or if you would rather just be deported, you or an attorney can apply for you to leave voluntarily at your own expense. The judge will only grant this if you can show that you have enough money to buy your own passage, if you have a valid travel document, and if you can convince the judge that you will not stay beyond the set date of departure. Talk to an attorney to find out more about asking for voluntary departure – it is much nicer than actually being deported.
- Prosecutorial Discretion: If you have no other viable option, and with the help of an attorney, you can apply for “prosecutorial discretion.” In the summer of 2011, the Department of Homeland Security released a few memos discussing the ability for ICE attorneys to grant immigrants “prosecutorial discretion” in very strong cases and to avoid deportation even when there is already a deportation order. It is very difficult to win this form of immigration relief. Talk to any attorney about the chances of successfully applying for prosecutorial discretion.
- Motions to Suppress: If you have been targeted by ICE in a way that egregiously violated your constitutional rights, speak to an attorney immediately! Motions to Suppress are much more common in criminal court than in immigration court; however, in certain situations they can work in removal proceedings as well. If you win this difficult and rare motion, you may be able to completely terminate proceedings.
- Others: There are also 212(h) waivers, 212(c) waivers and other legal statutes which allow people in certain situations to prevent or avoid deportation. You’ll need to talk with a lawyer to see if any of these options are available.