Common Legal Strategies Used in Deportation Defense

Deportation proceedings can be an overwhelming and stressful experience for individuals facing removal from the United States. The complexity of immigration laws and the high stakes involved make it essential to understand the legal strategies that can be employed to mount an effective defense.

This article delves into the common legal avenues used to contest deportation, underscores the importance of professional legal representation, and provides insights into how individuals can navigate this challenging process.

Understanding deportation proceedings

Deportation, officially known as “removal,” is the legal process by which the U.S. government orders a non-citizen to leave the country. Reasons for deportation can vary widely and may include:

• Violations of immigration laws: Such as overstaying a visa, illegal entry, or working without authorization.
• Criminal convictions: Certain criminal offenses can make a non-citizen deportable, including aggravated felonies and crimes involving moral turpitude.
• Fraud or misrepresentation: Providing false information on immigration applications or during entry can lead to removal.
• Security threats: Involvement in activities that threaten national security.

The Department of Homeland Security (DHS) initiates deportation proceedings, and cases are heard in immigration courts under the Executive Office for Immigration Review (EOIR). The outcome can significantly impact an individual’s life, including separation from family, loss of employment, and return to potentially dangerous conditions in their home country.

Common legal strategies in deportation defense

When facing deportation, it’s crucial to understand the various legal defenses available. Each case is unique, and the appropriate strategy depends on individual circumstances, including immigration history, family ties, and the reasons for deportation. Below are some common legal strategies that can be employed to challenge removal proceedings.

Cancellation of Removal

Cancellation of removal is a form of relief that allows certain non-citizens to avoid deportation and obtain lawful permanent resident status. There are two categories:

• For lawful permanent residents (LPRs):
  • Must have been an LPR for at least five years.
  • Must have resided continuously in the U.S. for at least seven years after lawful admission.
  • Must not have been convicted of an aggravated felony.
• For non-permanent residents:
  • Must have been physically present in the U.S. for at least ten years.
  • Must have exhibited good moral character during that period.
  • Must demonstrate that removal would result in “exceptional and extremely unusual hardship” to a U.S. citizen or LPR spouse, parent, or child.

This relief is discretionary, meaning even if all criteria are met, the immigration judge has the authority to grant or deny the application based on the individual’s overall circumstances.

Adjustment of status

An adjustment of status allows eligible individuals to become lawful permanent residents without leaving the United States. This strategy is often used when an individual becomes eligible for a green card through:

• Family sponsorship: Having a close relative who is a U.S. citizen or LPR petition on their behalf.
• Employment opportunities: Securing a job offer from a U.S. employer willing to sponsor the individual.
• Special programs: Such as the Diversity Visa Lottery or other humanitarian programs.

To qualify, the individual must have entered the U.S. lawfully and meet all eligibility requirements, including not being inadmissible on certain grounds such as criminal convictions or health-related issues.

Asylum and withholding of removal

Seeking asylum is a common defense for individuals who fear persecution in their home country due to:

• Race
• Religion
• Nationality
• Political opinion
• Membership in a particular social group

To be granted asylum, applicants must:

• File an application within one year of their last arrival in the U.S.
• Prove a well-founded fear of persecution.
• Show that the government in their home country is unable or unwilling to protect them.

Withholding of removal is similar but requires a higher standard of proof, demonstrating that it is “more likely than not” that they would face persecution upon return. While withholding does not lead to permanent residency, it provides protection from deportation.

Relief under the Convention Against Torture

The Convention Against Torture (CAT) provides protection to individuals who can demonstrate that they are likely to be tortured if returned to their home country. Torture is defined as severe pain or suffering inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official. To obtain relief under CAT, applicants must provide compelling evidence, such as:

• Credible testimony
• Country condition reports
• Expert witness statements

This relief does not lead to permanent resident status but does prevent deportation to the country where the threat exists.

Voluntary departure

Requesting voluntary departure allows an individual to leave the U.S. voluntarily, at their own expense, within a specified time frame (usually 60 to 120 days). Benefits of voluntary departure include:

• Avoiding a formal removal order can have severe immigration consequences.
• Potentially making it easier to apply for certain visas or waivers in the future.

However, failure to depart within the agreed time results in fines and a ten-year bar from several forms of relief.

Waivers of inadmissibility

Certain grounds of inadmissibility or deportability can be waived through Waivers of inadmissibility. Common waivers include:

• I-601 Waiver: For unlawful presence, fraud, or certain criminal offenses.
• I-212 Waiver: For prior deportations or removals.

To obtain a waiver, individuals must typically demonstrate that their removal would cause extreme hardship to a qualifying U.S. citizen or LPR relative.

Prosecutorial discretion

Prosecutorial discretion involves requesting immigration authorities to prioritize resources elsewhere, effectively closing or postponing the case. Factors that may influence a favorable exercise of discretion include:

• Length of time in the U.S.
• Family ties and community involvement.
• Military service.
• Lack of a criminal record or minor offenses.
• Health issues or caregiving responsibilities.

While not a permanent solution, it can provide temporary relief and the possibility of work authorization.

Deferred action

Deferred action is a temporary relief that delays deportation for a specified period. Notable programs include:

• Deferred Action for Childhood Arrivals (DACA): Protects eligible individuals who came to the U.S. as children.
• Deferred Enforced Departure (DED): Provides protection based on specific country conditions designated by the President.

While deferred action does not grant legal status, recipients may obtain work authorization and remain in the U.S. temporarily.

The role of legal representation

Navigating the complexities of immigration law requires expertise and experience. Lawyers for deportation and removal defense play a crucial role in:

• Case analysis: Assessing the specifics of the case to determine the most viable defense strategies.
• Legal advocacy: Representing individuals in immigration court proceedings, filing applications, and appealing unfavorable decisions.
• Documentation: Assisting in gathering and presenting evidence, such as affidavits, medical records, and expert testimonies.
• Negotiation: Engaging with immigration authorities to seek prosecutorial discretion or negotiate plea agreements in criminal matters that impact immigration status.
• Staying informed: Keeping abreast of changes in immigration laws, policies, and procedures that could affect the case.

Professional legal assistance can significantly improve the chances of a favorable outcome, ensuring that all possible avenues of relief are thoroughly explored.

Final thoughts

Facing deportation is an immensely challenging experience that can have life-altering consequences. However, multiple legal strategies are available to contest removal from the United States. Whether it’s applying for asylum, seeking cancellation of removal, or requesting prosecutorial discretion, understanding these options is essential for anyone in deportation proceedings.

The importance of professional legal representation cannot be overstated. Lawyers for deportation and removal defense provide the expertise and guidance necessary to navigate this complex process. They help safeguard the rights of individuals, advocate on their behalf, and work tirelessly to achieve the best possible outcome.

If you or someone you know is facing deportation, it is imperative to seek legal counsel immediately. Early intervention can make a significant difference in the trajectory of the case, offering hope and potentially preserving the opportunity to remain in the United States.