DEPORTATION - PART 2: DEFENSES AGAINST REMOVAL
In my last article, I wrote about deportation and the "removal" process by USCIS against a foreign alien. I covered the general classes of deportable offenses (1. Crimes of "moral turpitude", 2. aggravated felonies, and 3. deportable aliens as specified under the Immigration and Nationality Act) and gave you some examples. I outlined the typical steps of a removal proceeding: starting with the Notice To Appear (NTA), to the master and merit hearings and then finally ending with the immigration judge's decision. Now that we have a general understanding of the process, let's continue this week with an overview of some possible defenses or requests for relief of removal that may be available to a foreign alien finding themselves caught up in an immigration deportation case.
Common Defenses to Deportation
The following are some common defenses available to aliens in deportation proceedings:
1. Adjustment of Status for Permanent Residency (Green Card)
Although most green card applications are filed prior to the United States initiating removal proceedings against you, it can occasionally be used as a defense to deportation after the fact. In most cases, the application for permanent residency or "Adjustment of Status" is based on a family-based petition under INA section 245 or 245(i), but in some circumstances it can also be based on an approved employment-based petition. If either of these circumstances apply, the immigration judge may stay the deportation case so that your petition can be adjudicated by USCIS/USDHS.
This is a form of protection for people who have fled persecution or fear of future persecution in their home country. If granted, asylum allows legal status in the U.S., employment authorization, and eventually a green card. However, an asylum application must be filed within 1 year of your last arrival in to the United States. (Check you I-94, arrival information). An exception to this 1 year rule exists if you can show "extraordinary circumstances" that led to you not filing within 1 year of your arrival.
3. Withholding of Removal
Like asylum in many ways, withholding is more difficult to obtain, because you have to show that it is "more likely than not" that you would be persecuted in your home country upon return. In addition, withholding of removal provides less benefits than asylum. Where asylum allows for a path to a green card, recipients of witholding are not eligible to apply for a green card nor are they permitted to travel outside of the US. However, like asylum, a person who gets withholding can stay in the U.S. and can apply for employment authorization.
4. Cancellation of Removal for Persons Who Are Not Lawful Permanent Residents
This defense requires you to not only prove at least 10 years of physical presence in the U.S., but also that your removal would cause "exceptional and extremely unusual hardship" to your "qualifying relative" (ex. a spouse, parent, or child who is a U.S. citizen or permanent resident). This 2nd requirement is often the more difficult to show. Please consult a reputable and experienced attorney for more information about this requirement.
5. Cancellation Under the Violence Against Women Act (VAWA)
Similar to cancellation of removal for non-permanent residents I mentioned above, an applicant for VAWA cancellation must show that he or she has been "battered or subjected to extreme cruelty" by a "qualifying relative" in addition to meeting other requirements, including 3 years of physical presence in the U.S. and good moral character. Although specifically naming violence against "women", it is ameded by the Act to include other potentially eligible petitioners such as a spouse, a child, or a parent of a US citizen or permanent resident.
6. Deferred Action
Although this is technically not a defense, I've including this here as a form of possible relief for someone facing deporation. Deferred action occurs when the U.S. government decides to put your case on hold and not continue to prosecute you for removal at the present time. It is applied on a case-by-case basis (except for certain young immigrants where it's process has been formalized). Even though deferred action doesn't confer legal status, it is a method you can possibly use in order to remain in the U.S.
7. Prosecutorial Discretion
Similar to deferred action, prosecutorial discretion is a form of relief from deportation. Prosecutorial discretion is basically a decision by the U.S. government's attorney, who works on behalf of the federal government, to close the deporation case against you. If you receive prosecutorial discretion, you may be able to apply for work authorization but will not be eligible for other benefits such as the right to travel. However, the important thing to remember is that if you are granted prosecutorial discretion, you are no longer being processed for removal! This is a win!
8. Voluntary Departure
Voluntary departure is not a defense. Instead it is a request of last resort that if granted, does not tarnish your immigration record. A grant of voluntary departure permits you to depart the United States by a certain date without an order of removal on your record. If you are ordered removed by the judge, this order goes on your immigration record and as a consequence, you may not only be found automatically inadmissible for many years, but you will have to depart the US in a shortened time frame (30 days, as opposed to 60 or 120 days for voluntary departure!).
My Advice: See a Lawyer!
Again, the foregoing are just some examples of possible defenses or reliefs available to someone facing a removal/deportation case. If you find yourself facing a removal, I would seriously advise you to seek counsel from a reputable and experienced attorney. Even though I've given you some information on removals/deportations, there is so much more to the process of removal defense. Trust me...this is definitely not something you should take on by yourself. The least you could do is consult with a attorney. And if not me, then some other competent and experienced attorney. Besides being educated on the subject matter, only a licensed attorney can lawfully represent your legal interests.
Note About Attorney Fees: Some attorney's charge flat fees and some will charge a retainer. With a flat fee, the attorney charges you a set amount and that's it. No more, no less. A retainer fee arraigement, on the other hand, is paid on a fixed, pre-negotiated rate or on a variable hourly rate. In deciding to hire an attorney for deporation defense, make sure you know what you are agreeing to. Although a retainer might sound cheaper because of the initial low deposit amount, keep in mind (1) that the retainer agreement obligates you to pay, in most circumstances, an hourly rate, for the time the lawyer works on your case, and (2) there is usually no dollar or time limit. Given the nature of removal/deportation cases, you could be looking at a protracted, lengthy case. And, I'm not going to name names, but I've been in court and seen first hand, that some attorney's actually don't mind, and actually welcome, continuances! (A continuance is basically a delay in the case; either by request by the attorney or by order of the immigration judge, a continuance means that the hearing will be rescheduled for a future date). Think about it. If the attorney is charging you per hour, and that attorney goes to court and there is a continuance, who do you think pays for that delay? Yes, you do! That's because, in a retainer agreement, you're obligated to pay for the attorney's time - regardless of whether there is a hearing or a reschedule! So, although a retainer agreement might seem like a cheaper deal, in the long run it can cost you alot more.
JC's Conclusion: As I mentioned in part 1 of this 2 part series on removal and deportation, I hope none of you out there has to ever endure this process. Receiving an NTA is stressful and the process of defending one is not fun. With Trump as President of the United States and his pledge to reform the immigration policies of the country, who knows what kind of immigration changes he will be attempting to order. Regardless of this, I am here for you. Always.
Disclaimer: The information contained herein have been prepared for informational purposes only and are not to be considered legal advice unless otherwise specified. If you have a specific question regarding your personal case, please contact us directly at the Law Offices of Joseph Chitmongran for a full consultation.