Facing deportation or removal proceedings is a heartbreaking experience. You may be devastated, feeling like your American dream is coming to an end! However, it’s important to know that there are legal defenses available that may allow you to remain in the United States.
Immigration law is complex, so working with an experienced attorney can significantly improve your chances of successfully navigating the process. The lawyers of Weldon Law Group have over 20 years of experience helping clients achieve their goals for immigration, which includes cases of successfully standing up against removal proceedings.
We have compiled this blog to explore various potential defenses available to protect yourself or your loved ones from deportation. Read on to discover your options for remaining on U.S. soil!
What Are Deportation and Removal Proceedings?
“Deportation” and “removal proceedings” refer to the legal process in which the U.S. government seeks to remove a foreign national from the country. Common reasons for deportation include:
- Violating immigration laws
- Committing certain crimes
- Overstaying a visa
- Entering the U.S. unlawfully
The good news is that being placed in removal proceedings does not automatically mean you will be deported. With the right legal strategy, you may have several avenues of defense available to you.
Common Legal Defenses Against Deportation
Since there are several reasons removal proceedings might take place, there are many angles of defense your legal counsel might employ to protect you. Each defense is unique and depends on your specific circumstances, so consulting with an immigration attorney is crucial to determine which defense is appropriate for you. A few potential strategies might include:
1. Cancellation of Removal
If you are facing removal proceedings, you can potentially defend yourself through cancellation of removal. This legal remedy allows certain non-citizens to remain in the U.S. if they meet specific requirements, which vary depending on their status as a lawful permanent resident (LPR) or a non-lawful permanent resident (non-LPR).
- For Lawful Permanent Residents (LPRs): You may be eligible for cancellation of removal if you’ve been a lawful permanent resident for at least five years, have lived continuously in the U.S. for at least seven years after being lawfully admitted, and have not been convicted of an aggravated felony.
- For Non-Lawful Permanent Residents: If you are not a green card holder, you might still qualify for cancellation of removal if you’ve lived in the U.S. for at least 10 years, have good moral character, and can demonstrate that your removal would result in exceptional and extremely unusual hardship to a family member who is a U.S. citizen or lawful permanent resident.
2. Asylum or Withholding of Removal
If you are afraid to return to your home country due to persecution, you may be eligible for asylum. To qualify for asylum, you must prove that you have suffered persecution or have a well-founded fear of persecution due to your race, religion, nationality, political opinion, or membership in a particular social group.
Withholding of removal is similar to asylum, but has a higher burden of proof. It may still allow you to avoid deportation if asylum is not an option, but it doesn’t provide the same benefits as asylum, such as a pathway to citizenship.
3. Adjustment of Status
If you are eligible to apply for a green card, you may be able to adjust your status to avoid deportation. This defense is typically available to individuals who are immediate relatives of U.S. citizens or who qualify for a visa through employment or another legal avenue.
Adjustment of status is particularly helpful if you entered the U.S. lawfully but later became removable due to overstaying your visa or violating certain immigration laws.
4. Waivers for Certain Criminal Convictions
If you are facing removal due to a criminal conviction, a waiver may help you remain in the U.S. In some cases, certain crimes or offenses can be waived if you meet specific conditions, such as:
- You have been rehabilitated
- You are not a danger to the community
- Your family members would face extreme hardship if you were deported
For example, the 212(h) waiver can be used to waive certain criminal grounds of inadmissibility for immigrants applying for a green card.
5. Voluntary Departure
While not technically a defense, voluntary departure is an option for some individuals in removal proceedings. If you agree to leave the U.S. voluntarily, you may avoid the severe consequences of an official deportation order, which include being barred from re-entering the U.S. for a certain number of years.
Voluntary departure is often a last resort, but it can be a strategic option in cases where there is little chance of avoiding removal as it gives you the option to potentially return to the U.S. legally in the future.
6. Prosecutorial Discretion
Another defense strategy involves requesting prosecutorial discretion. This means asking the Department of Homeland Security (DHS) to stop pursuing your deportation case. The government may agree to exercise discretion based on factors like your length of residence in the U.S., family ties, and contributions to society.
While prosecutorial discretion does not provide lawful status, it can prevent deportation and allow you to stay in the U.S. temporarily. If granted, you may also be eligible to apply for work authorization.
7. Temporary Protected Status (TPS)
Temporary Protected Status (TPS) is available to individuals from certain countries that are experiencing ongoing armed conflict, environmental disasters, or other extraordinary conditions. If your home country is designated for TPS, you may be eligible to remain in the U.S. and work legally.
TPS is a temporary form of relief and does not lead to permanent residency. However, it can provide crucial protection from deportation while conditions in your home country remain unstable.
8. Appeals and Motions to Reopen
If the immigration judge rules against you in removal proceedings, it’s not the end of the road. You may have the option to appeal the decision to the Board of Immigration Appeals (BIA). Additionally, if new evidence arises or there was an error in your case, you can file a motion to reopen or reconsider the case.
Appeals and motions can be complex and time-sensitive, so working with an experienced immigration lawyer is essential to ensure you don’t miss any deadlines or overlook critical details.
How Weldon Law Group Can Help
Whether you’re facing removal proceedings, seeking asylum, or exploring other legal options, Weldon Law Group is here to provide the guidance and support you need. We will review your specific circumstances to see which defense may apply! Our bilingual lead lawyer, Ian Weldon, was named one of the Top 100 Trial lawyers in the country, so he has the experience and tireless work ethic to help you stay in the U.S. Reach out to schedule a free consultation and learn more about how we can assist you in defending against deportation.