Deportation Defenses for Undocumented Immigrants

 Posted on February 18,2016 in Immigration

Contrary to popular belief, undocumented immigrants do have rights even when before an immigration judge, though they have fewer than a U.S. citizen would. If you are in removal proceedings or have been given a Notice to Appear, you may be able to successfully defend yourself from deportation on one of any number of grounds.

Contesting Removability and Filing for Relief

As a general rule, it is a good idea to never openly concede removability, especially not on the record at an immigration hearing. If you admit that you are removable from the U.S., then United States Citizenship & Immigration Services (USCIS) does not have to prove anything, and you will have essentially done their work for them. However, this does not mean that you should lie. Lying can be seen as evidence of bad character, and a judge is very unlikely to grant relief or other requests if you acquire a reputation as a liar.

If you do not concede removability, you are contesting it and you may do so in a number of ways. You can argue that you are not removable for the reasons that USCIS is advancing, or you may simply make the federal government prove its case—more immigration proceedings are brought with less-than-ideal evidence than the average person might think. Even if you are found to be removable, however, you are still permitted to apply for relief.

Types of Immigration Relief

Filing for relief from deportation is still considered a defense, even though the question of removability may already have been decided. There are several different avenues an immigration judge may use to keep someone in the United States, or at least to give him or her another chance to legally adjust his or her status.

The most common types of relief requested in immigration proceedings include the following:

• Cancellation of Removal: This is grantable in a variety of ways, depending on the facts of your case. For example, if you can prove that you suffered abuse at the hands of your U.S. citizen spouse, you may be eligible for cancellation under the Violence Against Women Act (VAWA), which does also apply to men, despite its name;
• Withholding of Removal: This is a status granted by an immigration judge after an immigrant demonstrates proof that it is “more likely than not” that he or she would be subject to persecution if ordered returned to his or her home country. Many individuals think of this as a form of asylum; in reality, it is its own status, Those granted withholding have different rights and responsibilities than asylees; and
• Adjustment of Status: While a legal adjustment of status is usually reserved for those who have entered the United States with inspection (in other words, legally, at a border crossing), there are exceptions to the rule. One of the most common is the “registry” exception, which permits those in the country since before January 1, 1972 who have met other requirements to apply for a green card.

If all else fails, voluntary departure also qualifies as a form of relief, because without it, you are generally worse off. Voluntary departure is granted by a judge when an immigrant is found removable or has admitted removability, and it allows that person to voluntarily leave the country, as opposed to being removed, which results in a bar to reentry that can last anywhere from three years to life.

An Immigration Lawyer Can Answer Your Questions

Deportation proceedings are extremely complex, and the proverbial goalposts seem to constantly be shifting. If you are going through proceedings, or have received a Notice To Appear and need help, consulting a legal professional is always a good idea. The skilled DuPage County immigration attorneys at Mevorah & Giglio Law Offices will walk you through the process, and offer their best advice about how to reach an outcome that keeps you and your family together. Please call us today at 630-932-9100 to set up a free consultation, or fill out our web form to contact us via Internet.

Sources:

http://justice.gov/sites/default/files/eoir/legacy/2012/11/08/Chap%204.pdf

http://iwp.legalmomentum.org/immigration/vawa-self-petition-and-cancellation/articles/9-VAWA-Cancellation-MANUAL-ES.pdf

https://www.law.cornell.edu/cfr/text/8/208.16