Removal defense involves representing and advocating for immigrants facing deportation from the United States. For many immigrants facing removal from the United States, the process involves appearing before an immigration judge in immigration court. Legal representation is the single most important factor in determining whether someone will win or lose their case.
Some of the types of relief from removal or deportation that may be available:
- Adjustment of status, most likely under Immigration and Nationality Act (I.N.A) Section 245 or 245 (i). This is a way of changing from nonimmigrant to immigrant status in order to get legal status in the United States. Usually (among other requirements) you have to have entered the U.S. legally to qualify for adjustment. But some exceptions to the legal-entry requirement are available.
- Renewal of Form I-751 Removal of Conditional Residence. It is not uncommon for a conditional permanent resident to be placed in removal proceedings if he or she fails to timely file the I-751 petition to remove condition on residence if the I-751 is denied. In most circumstances, the I-751 petition can be renewed as a defense to removal before an Immigration Judge.
- Asylum. This is a form of protection for people who have fled persecution or fear future persecution in their home country, which allows legal status in the U.S., a work permit, and eventually a green card.
- 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. Also, it provides fewer benefits than asylum, because recipients are usually ineligible to apply for permanent residence or travel outside of the United States. However, a person who gets withholding can stay in the U.S. and can get work authorization.
- Protection Under the Convention Against Torture (CAT). Protection under CAT is available only if it is “more likely than not” that your home country’s government—or some person or group the government cannot control—will torture you. It does not matter why you would be tortured; the fact that it is likely that you would be tortured would be enough (unlike with an asylum case, where you must prove that the persecution is related to you fitting within one of five grounds). CAT is also like withholding in that persons who receive CAT protection cannot ever get permanent residence or travel internationally. But CAT recipients do usually receive permission to remain and work in the United States.
- Criminal Waivers: Criminal waivers – such as 212(c), 212(h) and EOIR-42A Cancellation of Removal for Legal Permanent Residents – are available to certain permanent residents who are being charged with deportability due to a criminal past. Occasionally, someone who is not yet a permanent resident can apply for permanent residency in conjunction with the 212(h) waiver to waive a crime that would otherwise cause the application for permanent residency to be denied.
- Cancellation Under the Violence Against Women Act (VAWA). Similar to cancellation of removal for non-permanent residents, an applicant for VAWA cancellation must show that he or she has been “battered or subjected to extreme cruelty” by a “qualifying relative” and meets other requirements, including three years of physical presence in the U.S. and good moral character.
- Cancellation Of Removal For Persons Who Are Not Lawful Permanent Residents. This is a way of obtaining a green card if you can prove ten years’ physical presence in the U.S., and can also show that your being removed would cause “exceptional and extremely unusual hardship” to your “qualifying relative” (a spouse, parent, or child who is a U.S. citizen or permanent resident).
- Noncriminal Waivers: A noncitizen in Immigration Court proceedings may need to file noncriminal waivers to obtain benefits such as U visas or permanent residency based on a family relationship or employment. Certain “bad acts” such as lying to get an immigration benefit, being “inadmissible” at time of entering the country, or “smuggling” one’s own spouse or child, for example, may need a waiver in order to obtain a given benefit. These waivers most often have to be filed simultaneously with other applications, but are sometimes required in order to prevent deportation..
- U Visas: Certain victims of crimes who are helpful in an investigation of the crime may apply for U visa status and obtain work authorization in the United States. If the U visa is approved, removal proceedings can be terminated. In some circumstances, removal proceedings can be administratively closed while the U visa is pending.
- DACA: Certain individuals who were brought to the U.S. as children, attended school in the U.S. and have not been outside of the U.S. for too long can apply for DACA, or Deferred Action for Certain Childhood Arrivals. Once DACA is approved, or in some circumstance even while the application is pending, removal proceedings can be administratively closed. Note: Before filing any DACA-related applications, any applicant should consult with an immigration lawyer to determine how and if Trump’s election will effect the application.
- TPS and NACARA: The U.S. government designates certain countries for Temporary Protected Status or “TPS” if conditions in that country temporarily make a person’s return unsafe, or if its government is unable to sufficiently handle the return of its nationals. Similarly, individuals from certain countries — primarily Central America and Eastern Europe — who entered the U.S. before certain dates and applied for asylum or registered for certain benefits may be eligible for NACARA. Both TPS and NACARA can serve as a defense to deportation.
- Voluntary Departure. If all else fails, this offers way to leave the U.S. without staining your immigration record with a past order of removal (which can make returning to the U.S. even harder).
- Deferred Action. This is an agreement by the U.S. government to put your case on hold (neither give you legal status nor deport you). It is applied on a case-by-case basis, except that procedures have been formalized for certain young immigrants.
- Prosecutorial Discretion. This is a decision by the government agency that is trying to deport you to stop trying to do so. 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. Usually, persons whose cases are closed based on prosecutorial discretion do not have a criminal record, but there are no set-in-stone rules about who can receive this benefit. Like deferred action, prosecutorial discretion must be discussed with the government attorney handling your case.
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