Common Defenses to Deportation

According to the most recent figures available, there are more than 10.5 million undocumented immigrants in the United States—about 3% of the population. Some entered the country legally, but their visa expired and they are now out of status. Others came to this country without an immigration status, seeking to escape danger in their home country.

If you are among the undocumented immigrants in the United States, for whatever reason, you are clearly not alone. But that doesn’t make it any easier if you have received a Notice to Appear (NTA) for immigration court proceedings to remove (deport) you from this country.

Receiving a Notice to Appear can be frightening, but it doesn’t mean, on its own, that you will be deported. There are a number of options for relief from removal, and you should consult an immigration attorney as soon as possible to see which of them might apply to you.

Options for Relief from Removal

Depending on your circumstances, you may be eligible for one of the following:

Asylum

If you came to the United States because you feared persecution in your home country, you may be eligible for asylum. To be granted asylum, you must be able to prove that you have a “well-founded” fear that you will be persecuted based on your race, religion, membership in a particular social group, or because of your political opinions. However, restrictions on asylum have recently been imposed by presidential proclamation.

Withholding of Removal

The grounds for withholding of removal are much like those of asylum. However, you must be able to prove not only that your fear of persecution if removed to your home country is well-founded, but that it is more likely than not that you will be persecuted if forced to return.

Convention Against Torture (CAT)

The United Nations Convention Against Torture is an international treaty that was ratified in 1987. Members of the CAT are forbidden from removing people to a country where there is reason to believe they will be tortured.

Cancellation of Removal for Individuals Without a Green Card

If you qualify for it, cancellation of removal for individuals is an excellent option. Not only does it protect you from deportation, but it may qualify you for lawful permanent resident status. To qualify, you must meet the following criteria:

Lived in the United States for at least 10 years;
Good moral character;
Have not committed any crimes or violated important laws;
Can show that your removal would result in exceptional hardship for a close family member who is a U.S. citizen or lawful permanent resident.

Cancellation of Removal — Violence Against Women Act

Cancellation of removal may also be available under the Violence Against Women Act (VAWA). Speak to an immigration attorney to discuss whether your situation may qualify you for cancellation of removal. You must be able to show that:

You been battered by or suffered extreme cruelty from a U.S. citizen or lawful permanent resident (LPR) abuser spouse, former spouse, or parent; or are the parent of a child who has suffered such abuse
You have been in the United States for more than three years before the start of removal proceedings
You have had good moral character for at least the past three years
Your removal would result in extreme hardship to you, your children, or parents, and
You are not subject to any grounds of inadmissibility.

Under VAWA, you may also qualify for cancellation of removal if you are the parent of an abused child of a U.S. citizen or lawful permanent resident, even if you have not been married to the abuser.

Deferred Action for Childhood Arrivals (DACA)

If you were brought to the United States as a child, you may be eligible for Deferred Action for Childhood Arrivals, better known as DACA. To qualify, you must:

Be under 31 years old;
Have entered the United States before turning 16 years old;
Have been physically present in the United States on June 15, 2012 and resided continuously in the United States from June 15, 2007 up to the time you filed your request for DACA;
Be currently enrolled in school, have graduated from high school or gotten your GED, or have been honorably discharged from the U.S. military
Not have been convicted of a felony, multiple misdemeanors or a serious misdemeanor, or pose a threat to national security.

Note that as of July 2024, USCIS is still accepting initial Deferred Action for Childhood Arrivals (DACA) requests, but will not process them due to a district court order.

For those who already have DACA, the Biden Administration is announcing plans to make it easier for DACA recipients to qualify for certain temporary work visas. The new policies would allow qualifying DACA recipients to more readily obtain H-1B visas, if they have a bachelor’s degree or higher from an accredited university and an employer who is willing to sponsor them.

Just because you have received a notice indicating that you may be removed from the United States, that doesn’t mean you have no recourse. Contact our law office to schedule a consultation and learn what options are available to you to avoid removal from the United States.

Categories: Immigration Law

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