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15 Common Defenses To Deportation

1. Applications for Permanent Residency / Adjustment of Status: While most green card applications are filed before someone is placed in removal proceedings, it can occasionally be used as a defense to deportation. In most cases, the application for permanent residency — or “Adjustment of Status” — must be based on an approved immigrant visa petition. Most often this is based on a family-based petition, but in some circumstances it can also be based on an approved employment-based petition. Learn more about marriage-based green cards here.

2. 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, or even after timely filing, the I-751 is denied by USCIS for other reasons. In most circumstances, the I-751 petition can be renewed as a defense to removal before an Immigration Judge. Learn more about the I-751 here.

3. 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. Learn more about criminal immigration here.

4. 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.

5. Asylum, Withholding of Removal and Relief under the Convention Against Torture: Those present in the United States who have suffered past harm, or fear that they will suffer harm upon return to their home country, may be eligible for asylum, withholding of removal or relief under the Convention Against Torture. Applicants must show that the harm they suffered or fear they will suffer rises to the level of “persecution” and that harm is based on race, religion, nationality, membership in a particular social group, or (actual or imputed) political opinion. Learn more about asylum here.

6. Prosecutorial Discretion: In some circumstances, the government attorney may exercise his or her discretion and close or terminate removal proceedings against an individual. The best practice is to request Prosecutorial Discretion in writing with evidence to the Department of Homeland Security. In some cases, a person will be eligible for work authorization even after a case is administratively closed, but this depends on other applications on file. It is important to note that under the current Trump Administration, this is not a realistic option at this time.

7. 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. Learn more about U visas here.

8. 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. Note: This is a developing area of law. Trump attempted to terminate the DACA program in 2017, however, the US Supreme Court on June 18, 2020, held that Trump did not follow the proper procedures to terminate the program. The Trump Administration has stated it is working on properly terminating the program per the Supreme Court Decisions requirements. Before filing any DACA-related applications, any applicant should consult with an immigration lawyer to determine the current state of law. Learn more about DACA here.

9. 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. Learn more about TPS and NACARA here.

10. VAWA and VAWA Cancellation of Removal: Victims of certain crimes involving domestic violence may be eligible for relief under the Violence Against Women Act. These applications can serve as a defense to deportation. Learn more about VAWA here.

11. EOIR-42B, Non-Legal Permanent Resident Cancellation of Removal: In some cases, an applicant can have his or her deportation proceeding canceled and obtain lawful permanent resident status if he or she can establish (1) Physically present in the U.S. for at least 10 years before Immigration Court proceedings began; (2) Good moral character for 10 years; and (3) That a U.S. citizen or legal permanent resident child, spouse, or parent will suffer extreme and exceptionally unusual hardship if the individual is not allowed to remain in the U.S. Those who file EOIR-42B Cancellation of Removal are eligible for a work permit while the application is pending.

12. Motions to Terminate: If the charges on the government’s Notice to Appear are not correct, an applicant may be able to file a Motion to Terminate asking the Immigration Court to terminate proceedings.

13. Motions to Suppress: If an individual was detained by law enforcement or immigration in violation of constitutional due process or applicable immigration regulations, it might be possible to request the Immigration Court to suppress the evidence and to terminate Immigration Court proceedings.

14. Voluntary Departure: If no other deportation defense options are available, or in the event a person is eligible to return to his or her home country and obtain a visa to return to the U.S., he or she may want to request voluntary departure in lieu of being ordered removed / deported. Voluntary Departure is not available to everyone in removal proceedings, but may be the best option.

15. Special Immigrant Juvenile Status (SIJS)