Facing deportation is among the most frightening experiences an immigrant can encounter. The prospect of being forcibly removed from your home, separated from your family, and sent to a country you may barely know creates tremendous stress and uncertainty. However, deportation is not inevitable, and numerous legal defenses exist that may allow you to remain in the United States legally. Understanding your options and working with an experienced immigration attorney can make the difference between staying with your family and being removed from the country.
Understanding Removal Proceedings
Deportation, now formally called removal, is the legal process by which the government forces non-citizens to leave the United States. The government initiates removal proceedings by filing a Notice to Appear with the immigration court. This document specifies the charges against you and the legal grounds upon which the government seeks your removal.
Removal proceedings take place in immigration court before an immigration judge. These proceedings are civil, not criminal, though the stakes are often higher than many criminal cases. You have certain rights including the right to an attorney, though unlike criminal court, the government will not provide one for you. Understanding the process helps you prepare for what lies ahead and make informed decisions about your defense.
Grounds for Deportation
Non-citizens can be placed in removal proceedings for various reasons. Criminal convictions are a common trigger, particularly for aggravated felonies, drug offenses, crimes involving moral turpitude, and domestic violence. Even long-time permanent residents can face deportation based on criminal history.
Immigration violations also lead to removal proceedings. Overstaying a visa, entering without inspection, working without authorization, and fraud in obtaining immigration benefits are all deportable offenses. Additionally, security-related grounds, public charge determinations, and other specific violations can render someone deportable. Understanding why you are in proceedings helps identify potential defenses.
Asylum and Withholding of Removal
Individuals who fear persecution in their home country may qualify for asylum or withholding of removal. Asylum is available to those who face persecution based on race, religion, nationality, political opinion, or membership in a particular social group. You must demonstrate a well-founded fear of future persecution or prove you have suffered past persecution.
Withholding of removal has a higher standard but cannot be denied based on certain bars that apply to asylum. Those who face torture may qualify for protection under the Convention Against Torture. These forms of relief allow individuals to remain in the United States rather than return to dangerous conditions. An immigration attorney can evaluate whether you qualify and help build a strong application.
Cancellation of Removal
Long-term residents may qualify for cancellation of removal, which allows them to remain in the United States despite being deportable. Permanent residents must have held their green cards for at least five years and have resided continuously in the United States for seven years. They must not have been convicted of an aggravated felony.
Non-permanent residents face stricter requirements, including ten years of continuous physical presence, good moral character, and demonstrating that removal would cause exceptional and extremely unusual hardship to a qualifying relative who is a U.S. citizen or permanent resident. Cancellation is discretionary relief, meaning the judge considers all circumstances in deciding whether to grant it.
Adjustment of Status
Some individuals in removal proceedings may be able to adjust their status to permanent resident based on family relationships, employment, or other grounds. If you are the immediate relative of a U.S. citizen, you may be able to obtain a green card even while in proceedings. This requires an approved immigrant petition and meeting other eligibility requirements.
Adjustment of status may also be possible for some individuals who entered the country illegally if they have qualifying family relationships and meet certain criteria. Understanding whether adjustment is possible in your case provides an important potential path to remaining in the country legally.
Voluntary Departure
While not a defense that allows you to stay, voluntary departure offers advantages over being ordered removed. Leaving voluntarily avoids the formal removal order and the bars to future entry that come with it. You may be able to return to the United States sooner and through legal channels.
Voluntary departure comes in two forms: before the conclusion of proceedings or at the end of proceedings after the judge has heard the case. Each has different requirements and implications. While not ideal, voluntary departure may be the best option when defenses are unlikely to succeed and you want to preserve future immigration options.
Prosecutorial Discretion
Immigration enforcement involves prioritization, and not every case results in removal. Prosecutorial discretion allows immigration authorities to decide not to pursue removal in certain cases. Factors considered include length of residence, family ties, immigration history, criminal record, and contributions to the community.
Demonstrating that you are a low priority for removal may result in your case being administratively closed or terminated. While policies change with administrations, gathering evidence of your positive equities and ties to the community is always valuable. An experienced attorney knows how to present your case to maximize the chances of favorable exercises of discretion.
Working With an Immigration Attorney
Deportation defense requires specialized knowledge of immigration law and court procedures. Immigration law is complex, and the consequences of mistakes are severe. Having experienced legal representation significantly improves outcomes in removal proceedings. Many immigrants facing deportation qualify for defenses they are not aware of without proper legal guidance.
If you cannot afford an attorney, organizations provide free or low-cost immigration legal services. Accredited representatives at nonprofit organizations can also provide assistance. Whatever your resources, obtaining some form of legal help is critical. Acting quickly is important, as deadlines in immigration court are strict and missing them can cost you your case.