For individuals considered to be undocumented aliens, it can be extremely stressful worrying about the risk of being removed from the country. If an undocumented alien is facing removal, it means that the government believes that they do not have the authorization to remain in the United States under a lawful status. Depending on your unique circumstances, there may be a legal defense that could prevent or prolong you or a loved one from being removed/deported from the U.S.
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Possible Defenses to Removal of an Undocumented Alien
An experienced immigration lawyer will be able to review your specific case and determine if there is a valid and suitable legal defense available for you. This article will touch on a few of the most common legal defenses used to prevent or prolong removal. Although it is important to educate yourself on the basics, it is crucial to seek the legal advice of a licensed immigration lawyer.
Argue That You Are Not Removable as Charged
The first possible defense is to argue that you are not removable as charged by the United States government. You will have to prove that the U.S. government was incorrect in pursuing removal proceedings against you. At one of your initial immigration court hearings, you will be asked by the judge to concede or contest any charges of removability and also to admit or deny factual allegations. Because there are specific rules for immigration court, it is in your best interest to work with an immigration lawyer.
Burden of Proof
The “burden of proof” means that if the DHS must prove to the judge that you are in fact removable. If the Department of Homeland Security (DHS) is unable to come up with actual proof that you are deportable, then the DHS does not satisfy this burden and you can ask the judge to close your case.
However, even if the DHS does meet its burden of proof, the judge ultimately decides if you are removable as charged. If the judge also determines that you are removable, there may be different types of relief from removal that you can file.
Request Relief From Removal
While you are in removal proceedings, the immigration judge will generally inform you of any types of relief from removal you may qualify for. Your lawyer will be able to go into detail on these types of relief and provide you with more information on your options.
Different Types of Relief
Without the specific details about the many aspects of your life, a judge will not be able to fully and accurately evaluate what relief you may quality for. Information such as any relatives you have in the United States with legal status and how long you have been in the U.S. will need to be provided to the judge in order for him/her to decide what types of relief you could potentially qualify for. Your attorney will be able to advise you if you could be eligible for relief. There are various types of relief from removal that are available to undocumented immigrants. Here are few of the most common types of relief:
Adjustment of Status
Most likely cited under Immigration and Nationality Act (INA) Section 245 or 245(i), an Adjustment of Status is a way of changing from non-immigrant to immigrant status in order to gain legal status in the U.S. In order to qualify, you are usually required to have entered the United States legally; however there are some exceptions to this rule.
Adjustment of Status Through Registry
Under INA Section 249, this type of adjustment is a way for you to get a green card if you meet certain criteria. Among other requirements, you must have entered the U.S. before January 1, 1972, resided in the United States since that date, and be in good moral character.
Asylum
For those who have fled persecution or fear future persecution in their home country, there is a form of protection called asylum. Asylum gives these individuals legal status in the United States, a work permit and eventually a green card. There are many eligibility criteria and requirements to be considered for asylum; an experienced attorney will be able to go over these with you. To learn more about asylum, visit our page:
Asylum Eligibility and Requirements
Withholding of Removal
Similar to asylum, you must prove that it is more likely than not that you will be persecuted in your home country if you return. Withholding of Removal is more difficult to obtain and also provides fewer benefits than asylum. An undocumented alien would be able to stay in the United States and get work authorization; however he or she is usually ineligible to apply for permanent residence or travel outside of the U.S. To learn more about Witholding of Removal, read our article, The Difference Between Asylum, Witholding of Removal and CAT.
Protection under the Convention Against Torture (CAT)
This particular type of relief is available to those who can prove that it is more likely than not that, if they return to their home country, they will be tortured by the country’s government or a group that the government cannot control. The reason why you would be tortured is irrelevant; you just need to prove that you will in fact be tortured. CAT is similar to withholding because you will not be able to gain permanent residence or travel outside of the U.S.; however you will be able to remain in and work in the United States.
Cancellation of Removal
For those who are not lawful permanent residents, cancellation of removal is a way to obtain a green card. You will need to prove that you have physically resided in the U.S. for at least ten years and that your removal from the country will cause “exceptional and extremely unusual hardship” to your qualifying relative, such as a spouse, child or parent, who is already a U.S. citizen or permanent resident.
Cancellation under the Violence Against Women Act (VAWA)
Similar to the cancellation of removal, in order to qualify for the cancellation under the VAWA, you must meet certain criteria. You must prove that you have had a physical presence in the United States for at least three years, be in good moral character and have been battered or subjected to extreme cruelty from a qualifying relative.
NACARA Special Rule Cancellation
In order to qualify for the NACARA Special Rule Cancellation, you must meet very specific requirements. There is a list of particular countries that you must be from and you will have to show you have applied for asylum before a particular date or that you are eligible to apply to reopen past removal proceedings under the LIFE Act.
Voluntary Departure
If everything else fails, voluntary departure gives you a way to leave the United States without tarnishing your immigration record with a past order of removal. Having this on your record could make it even harder for you to return to the U.S. in the future.
Deferred Action
Determined on a case by case basis, a deferred action will put your case on hold, giving you neither legal status nor deporting you. Procedures have been formalized specifically for young immigrants, but basically the government agency that is trying to deport you must stop trying to do so. Individuals who could qualify for the DAPA or DACA immigration programs should always ask their lawyer if they are eligible for “prosecutorial discretion” which is explained below.
Prosecutorial Discretion
In immigration cases, prosecutorial discretion refers to the power that Immigration and Customs Enforcement (ICE) has to influence a deportation case. In cases involving prosecutorial discretion, law enforcement has the option to not enforce the law, or enforce it to a lesser degree. Before seeking this type of relief, it is imperative that you consult with an immigration attorney. Generally applicants must not have any criminal record and will qualify for work authorization. To learn more about prosecutorial discretion, read our article, The Truth About Prosecutorial Discretion and Advance Parole.
Do Not Try To Defend Yourself in Court
You should never lie to an immigration judge in order to alter the charges of removability. If you are caught lying to a judge, you will most likely lose any rights you may have had to apply for relief and you will lose credibility in any future cases. This does not mean you should reveal everything; some information could hurt your case. This is why it is important for you to discuss your specific case details with an immigration lawyer.
Call KPPB Law today or contact us online in order to discuss your case and find out which legal defense will work best for you.