Deportation is undoubtedly the most feared term for any undocumented immigrant living in the country without proper papers. You must take any matter that can cause deportation seriously, regardless of your stay in the country.
If you have received a notice of removal proceedings from the immigration authorities, it is expected to worry because you are uncertain about how the case could turn out, but you have options. Retaining the services of a competent and experienced immigration attorney should be your first step if you are in this situation.
Aside from helping you understand the nature of the legal issue you are up against, a skilled attorney can help you prepare legal defenses to challenge the removal proceedings for the best possible outcome.
Understanding Who an Undocumented Alien Is in the Eyes of the Court
Also known as an illegal immigrant, an undocumented alien is any foreign-born individual who does not have a valid visa or immigration documentation to work or live in the country lawfully. That could be possible if the person:
- Entered the country without proper inspection
- Has an invalid visa
- Stayed in the country longer than his/her visa allows
- Pursuing asylum status or U-visa
- Has an immigration status in the immigration court
Aside from putting you at risk of deportation, staying in the country as an undocumented immigrant could make it challenging to secure employment, healthcare, public benefits, and education. If you received a notice of removal proceedings from the immigration authorities for whichever reason, your stay in the country could end, affecting many of your plans.
However, all hope is not lost. If you work with a dedicated immigration attorney, you could qualify to challenge the deportation and remain in the country.
Legal Defenses to Challenge Deportation for Undocumented Immigrants
If you are an undocumented alien, your attorney could apply various legal defenses during removal proceedings to convince the immigration court judge why you should remain in the country. For example, he/she can:
Argue That You Do Not Qualify for Deportation Based on the Alleged Charge
If the immigration authorities have served you with a notice of removal proceedings, your attorney can help you prove to the court that you wrongfully put in the removal proceedings. For example, he/she can argue that you do not qualify for deportation based on the alleged offense. During your initial hearing before an immigration court judge, he/she will inform you of your legal options, including:
- Right to an attorney
- Right to enter a plea of your choice, including guilty, not guilty, or no contest
Even if you believe that the immigration authorities could deport you for being in the country without proper documents, you would want to challenge the allegations you are up against. That means the DHS (Department of Homeland Security) will have the legal burden to provide evidence to support the alleged charge.
In some cases, the DHS will file a charge of deportation or removability against you based on another reason that does not involve your illegal or undocumented status. If your attorneys win the case or the DHS lacks sufficient evidence to support their charges against you, the immigration court judge will likely end your removal proceedings.
Even if the government meets its legal burden to prove that you qualify for deportation, you could be eligible for several other immigration relief options, like asylum, to avoid deportation. However, qualifying for these relief options could be impossible if you lied to the judge to prove you are not deportable.
Lying to the immigration judge during your removal proceeding can also affect your credibility in the remaining proceedings because he/she will review your entire case. While being truthful and honest with the immigration judge is vital, you should beware that disclosing some information during the removal proceeding could negatively affect the outcome of your case.
Therefore, you should speak with your attorney beforehand to know what information you can disclose to the judge and what you should not.
File a Petition for Relief From Deportation
In most cases involving undocumented aliens, the DHS will win the removal proceedings against you. However, the immigration judge will be ready to listen to your attorney's defense arguments about your removal or deportation. If you are in this situation, the judge will describe your available options, but he/she will not be as thorough as your attorney would when exploring your legal options.
If you do not have an attorney yet, you should remember to ask the immigration judge about the immigration relief options you could qualify for. Doing that will let the judge understand that you expect him/her to respect your rights and treat you fairly.
However, the judge cannot precisely determine which immigration relief option you could qualify for if he/she does not have enough details about various particulars of your case and life. For instance, you need to let him/her know of your length of stay in the country and whether you have any relatives with lawful status to live here.
Described below are different forms of immigration relief you could qualify for if you are in immigration court:
1. Adjustment of Status
One of the common reasons why most foreigners or aliens end up in trouble with immigration authorities is failure to have their paperwork in order. For example, if you are in the country with a student visa, forgetting to extend it whenever you want to prolong your stay could put you in trouble with the law enforcement authorities.
In that situation, you could qualify to adjust your status to being legally present as long as you entered the country legally. In other words, adjustment of status is a way of transitioning from illegal nonimmigrant status to lawful immigrant status, mainly through sponsorship by a close relative or family member with a green card.
2. Asylum
If you flee your home country because you feared prosecution, you could qualify for asylum status to avoid removal from the country. However, to be eligible for asylum, your attorney must prove that you have a legitimate fear that you could face prosecution based on religion, race, membership of a specific social group, political affiliation, or nationality.
Generally, asylum status is discretionary, meaning the judge can deny your request even if you meet all the required criteria. Below are some of the benefits of obtaining asylum:
- You can work in the country legally
- You can eventually apply for a green card
- You will have the right to travel intentionally
- It will cover your spouse and children if they are also in the country
However, you will not qualify for asylum status if you have received a conviction for particular grave offenses.
3. Withholding of Removal
Another form of immigration relief you could qualify for is withholding of removal. While it is similar to asylum relief in several ways, withholding has two notable advantages, and they include:
- It does not have a one-year deadline to request it
- The immigration judge must grant the withholding request when the court grants it
However, qualifying for this immigration relief option could be challenging because you have to prove to the court that there is a high chance that going to your home country will have you persecuted. However, like asylum, you will not qualify for withholding if you have a past conviction for certain serious crimes such as:
- Murder
- Rape
- Drug trafficking
- Child pornography
- Kidnapping
It is also important to note that if you are eligible for withholding, you will not qualify to do any of the following:
- Travel internationally
- To become a legal citizen
- Petition for derivative status for an immediate relative
4. Cancellation of Removal for Undocumented Aliens
If you are an excellent candidate for it, cancellation of removal could be a superb immigration relief option to avoid deportation. Generally speaking, you could qualify for this immigration relief option if deporting you to your home country would result in unnecessary hardship to a close relative who is a legal citizen. Specifically, to qualify for this immigration relief option, your attorney must prove that:
- You have stayed here for ten years or more
- The deportation would result in “extremely and exceptionally” unusual challenges or hardship to a close family member like a spouse or a brother who is a green card holder or legal citizen
- You do not have a conviction record for an inadmissible offense
- You do not have a criminal record and have maintained excellent moral character during the entire ten-year period
If the court grants the cancellation of a removal request, you can proceed to have your immigration status adjusted to lawful and receive permanent residency status (green card). However, the number of cancellations for removal applications the immigration judge can approve yearly nationwide is not more than 4,000.
Unfortunately, when this cap is reached before you file your cancellation or removal request, you must wait until another slot becomes available.
5. Cancellation of Removal for Victims of Domestic Violence
You can apply for cancellation of removal under the VAWA (Violence Against Women Act). VAWA cancellation of deportation will allow you to remain in the country if you are a victim of extreme cruelty or battery. Specifically, to qualify for this immigration relief option, your attorney must prove that:
- You are a good-mannered and law-abiding citizen
- The abuser is a lawful citizen
- You have stayed here continuously for three (3) years
- You are not marked inadmissible
- You will likely suffer extreme hardship when you go to your home country
6. Convention Against Torture (CAT) Protection for Foreigners Facing Torture
You could qualify for mandatory protection under CAT if you are an undocumented alien and you cannot return to your home country because there is a high chance you could face torture by:
- Your country's government
- Any group your government cannot control (For example, ISIS)
However, this immigration relief option offers fewer advantages than asylum. For instance, if the government is willing to take you to another safe third country, it will not stop them from doing so.
7. Voluntary Departure
When other relief options fail, the voluntary departure could provide a pathway to exit the country without facing the formal deportation order, which will stain your immigration history. Once deported, the immigration court could bar you from re-entering the country for many years or sometimes permanently.
If you do not have any other applicable legal defense to prevent your removal from the country, voluntary departure is an option worth considering. However, to qualify for voluntary departure, you must meet specific criteria and agree to leave the country within 60 or 120 days. Failing to leave the country within the set time frame could worsen your situation.
While voluntary departure does not provide you with a way to secure a lawful status to remain in the country, this option gives you ample time to have your affairs together before you exit. Also, it leaves you with an open opportunity to re-enter the country lawfully through the usual immigration channels in the future.
Your attorney will likely recommend this option if deportation seems inevitable and you are not an excellent candidate for other immigration relief options.
8. “Dreamer” Deferred Action
Sometimes, your attorney could help you request a deferred action, which typically puts your immigration case temporarily on hold. In other words, deferred actions do not provide you with a lawful status or green card. However, it will allow the immigration authorities to deter your deportation or removal action to enable you to remain in the country for a while.
To qualify for “dreamer” deferred action, also known as DACA (Deferred Action for Childhood Arrivals), your attorney will bear the burden to prove that:
- You are below thirteen one (31) years
- You entered the country before turning sixteen (16) years old
- You have stayed in the country physically since 15th June 2012
- You have continuously resided in the country since 15th June 2010
- You are enrolled in a school, have received a GED or have graduated, or the Military has honorably discharged you
- You do not have a conviction record for a serious crime
9. Prosecutorial Discretion
Even though you are technically deportable, the government prosecutors could decide to dismiss your deportation case, but with some conditions. While it occurs rarely in immigration cases, it is an immigration relief option worth considering if you have received a notice of removal proceedings from the immigration authorities.
If granted, prosecutorial discretion will allow you to work here legally, but you will be ineligible for other advantages, like the right to international travel. While any undocumented alien could qualify for prosecutorial discretion, you are more likely to qualify for this relief option if you do not have any previous convictions.
However, like the deferred action, securing this relief could be challenging, especially if you do not have an attorney. Your immigration attorney must discuss this matter with the prosecutor handling your immigration case beforehand to increase your odds of securing a favorable outcome.
10. Private Bills
In rare cases, Congress could pass a private bill that prevents a foreigner or a group of foreigners from deportation. Generally speaking, Congress is more likely to offer you this relief if you have a compelling story or evidence showing that you are more likely to face extreme hardship when you return to your home country.
Once Congress passes this bill and the President signs it, the named individuals will have a right to stay in the country lawfully and receive permanent residency.
The rule of thumb if you are an undocumented alien and have received a notice of removal proceedings is to contact a seasoned attorney to help you understand what you are up against and your legal options. With the legal assistance of an experienced attorney, you could qualify for any of the above-explained immigration relief options to avoid deportation.
Why You Need an Immigration Attorney When Crafting Defenses to Help You Avoid Deportation
The legal complexities of deportation could be challenging and stressful, but you do not have to go through this process alone. Having a skilled and seasoned attorney on your side could offer you several benefits. In a nutshell, the attorney you will choose can do the following:
- Access your unique case and apply his/her legal knowledge and experience to determine the possible forms of immigration relief you could qualify for to avoid deportation
- Represent your best interests and your side of the story during interviews and hearings to secure the best possible outcome
- Offer you legal counsel to know what you can and cannot do at every step of the process to stand a chance of securing a favorable outcome
While representing yourself is still an option, you will have a higher chance of securing a favorable outcome if you retain the services of a seasoned and competent immigration attorney.
Find a Dependable Immigration Defense Attorney Near Me
Living here without proper documentation could eventually result in removal or deportation to your home country. However, a skilled immigration defense can assert several defenses to help you avoid deportation if you have received a notice of removal proceedings from the immigration authorities.
We invite you to call our reliable immigration attorneys at California Immigration Attorney at 424-789-8809 to know how we can help you avoid deportation and secure your future in the country.