Immigration removal defense occurs when the U.S. government attempts to prove that an immigrant is removable or deportable from the United States. The following is a quick overview of some of the reasons the U.S. government may find an immigrant removable, and common defenses to these allegations.
Please note that these situations and explanations are in no way intended to be legal advice. Please also note that this list is not exhaustive but merely examples of some removal defenses.
Some examples of removal defenses that our immigration attorneys will utilize:
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 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.
It is not uncommon for conditional permanent resident to be placed in removal proceedings if (s)he 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.
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 political opinion.
In some circumstances, the government attorney may exercise their discretion and close or terminate removal proceedings against an individual. 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.
Victims of certain 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.
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 Deferred Action for Certain Childhood Arrivals (DACA).
Victims of certain crimes involving domestic violence may be eligible for relief under the Violence Against Women Act.
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.
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.
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