(707) 200-3636 info@parslaw.net

Deportation Defense

Deportation Defense

Deportation defense, also referred to as removal defense, involves a series of complex and confusing legal approaches to prevent removal during immigration court proceedings, which could include one or more of the followings.

Motions to Terminate. If the charges on the government’s Notice to Appear are not correct, an applicant may be able to file a Motion to Terminate asking the Immigration Court to terminate proceedings. However, recent BIA holding has made this option more difficult to accomplish.

Motions to Suppress. If an individual was detained by law enforcement or immigration in violation of constitutional due process or applicable immigration regulations, it might be possible to request the Immigration Court to suppress the evidence and to terminate Immigration Court proceedings.

Waivers. A noncitizen in Immigration Court proceedings may need to file waivers to obtain benefits such as U visas or permanent residency based on a family relationship or employment. Certain “bad acts”such as lying to get an immigration benefit, being “inadmissible” at time of entering the country, or “smuggling” one’s own spouse or child, for example, may need a waiver in order to obtain a given benefit. These waivers most often have to be filed simultaneously with other applications, but are sometimes required in order to prevent deportation.

Cancellation of Removal for Permanent Residents (LPR). Even lawful permanent resident (LPR) may be subject to removal proceedings and ultimately deportation if they were convicted of certain crimes. This relief is available only in Immigration Court before an Immigration Judge. It allows the individual to retain their green card. In order to succeed, they must have been a lawful permanent resident of the U.S. for at least five years at the time that the application is filed, have continually resided in the U.S. for at least seven years, have not been convicted of an aggravated felony have not received cancellation of removal or 212(c) relief in the past, and as a matter of discretion, deserve to keep their green card.

Cancellation of Removal for Non-Permanent Residents. Those who are not a lawful permanent resident may apply for cancellation of removal if they can show they have lived in the United States for 10 years or more, have good moral character, have a spouse, parent, or child (under age 21) who is legal permanent residents or U.S. citizen; and that a member of their family will suffer “exceptional” and “extremely unusual” hardship if they are removed from the United States.

Adjustment of Status. While most green card applications are filed before someone is placed in removal proceedings, it can occasionally be used as a defense to deportation. In most cases, the application for permanent residency — or “Adjustment of Status” — must be based on an approved immigrant visa petition. Most often this is based on a family-based petition, but in some circumstances it can also be based on an approved employment-based petition.

Asylum, Withholding of Removal and Relief under the Convention Against Torture. Those who have suffered past harm, or fear that they will suffer harm upon return to their home country based on race, religion, nationality, membership in a particular social group, or political opinion, may be eligible for asylum, withholding of removal or relief under the Convention Against Torture.

Prosecutorial Discretion. In some circumstances, the government attorney may exercise his or her discretion and close or terminate removal proceedings against an individual.

DACA. Certain individuals who were brought to the U.S. as children, attended school in the U.S. and have not been outside of the U.S. for too long can apply for DACA, or Deferred Action for Certain Childhood Arrivals during removal proceedings.

U Visas. Certain victims of crimes who are helpful in an investigation of the crime may apply for U visa status and obtain work authorization in the United States. If the U visa is approved, removal proceedings can be terminated.

TPS and NACARA. The U.S. government designates certain countries for Temporary Protected Status or “TPS” if conditions in that country temporarily make a person’s return unsafe, or if its government is unable to sufficiently handle the return of its nationals. Similarly, individuals from certain countries — primarily Central America and Eastern Europe — who entered the U.S. before certain dates and applied for asylum or registered for certain benefits may be eligible for NACARA. Both TPS and NACARA can serve as a defense to deportation.

VAWA and VAWA Cancellation of Removal. Victims of certain crimes involving domestic violence may be eligible for relief under the Violence Against Women Act. These applications can serve as a defense to deportation.

Voluntary Departure. If no other deportation defense options are available, or in the event a person is eligible to return to his or her home country and obtain a visa to return to the U.S., he or she may want to request voluntary departure in lieu of being ordered removed / deported. Voluntary Departure is not available to everyone in removal proceedings, but may be the best option.

Post-Conviction Relief. Post-conviction relief in criminal cases plays an increasingly important role in defense of immigrants in removal proceedings. Where there is no defense against removal, and no relief available, the only way to avoid deportation may be to obtain post-conviction relief in criminal court to eliminate the conviction that triggered deportation proceedings.

Contact us for free consultation if you have received a Notice to Appear in immigration court and are facing removal from the United States.