Possible Defenses to Deportation of an Undocumented Alien

Possible ways for a non-citizen with no legal status in the U.S. to avoid being removed (deported) and obtain the right to remain in the United States.

By , Attorney (Temple University School of Law)

If you are "undocumented"—meaning that you have no immigration status in the United States—and you are in "removal" proceedings in immigration court, don't give up too soon. There are a few legal defenses available that might make it possible for you to avoid being removed (deported).

We'll review the most common defenses below. Be advised, however, that getting a lawyer's help will be your best bet for successfully requesting relief.

Argue That You Are Not Removable From the U.S. as Charged

First, you might be able to show that the U.S. government was basically wrong to put you into removal proceedings at all, because you are not, in fact, removable (deportable). At one of your first hearings in immigration court, the Immigration Judge (IJ) will ask you to admit or deny factual allegations and concede (admit) or contest (deny) any charges of removability as shown on the Notice to Appear (NTA).

It is usually a good idea to deny the allegations and contest any charges of removability. As long as you do not concede charges of removability, it remains the Department of Homeland Security's (DHS) burden or responsibility to present enough evidence to show that you are actually removable.

If you are undocumented, you probably are removable. However, it is possible that the DHS charged you with being removable for the wrong reasons. It is also possible that DHS will be unable to present documents to show that you are removable. If DHS can't meet its burden of showing that you are removable, you can ask the IJ to close the case.

Even if DHS meets its burden and/or the IJ decides that you are removable as charged, you can submit applications for relief from removal, as described below.

Never lie to the immigration judge to try to show that you are not removable. If you say something untrue, you will probably lose any rights you might have had to apply for relief from removal, such as asylum. And even if you can still present an application for relief from removal, your past lie will make it unlikely that the IJ will believe anything you say, and the IJ can deny your application on that basis.

While being honest is important, you might also have information that could hurt your case. If so, talk to an attorney about whether you have to share the negative information with the court.

Request Relief From Removal

Usually, it is the IJ's responsibility to tell foreign nationals in removal proceedings what types of relief from removal they appears to qualify for. However, that doesn't always happen in a truly helpful way. A private attorney can spend more time with you, explore all the possibilities, and give you a fuller explanation of what types of relief might realistically be available.

If you are not represented by an attorney, it is a good idea to directly ask the judge, while on the record, what type of relief from removal you might qualify for. This will let the IJ know that you know about the judge's responsibility to advise you about all possible relief. More importantly, it will encourage the judge to carefully review your case.

Of course, the IJ cannot accurately evaluate what relief you might qualify for unless you provide information about various aspects of your life, for example, your relatives in the U.S. with legal status, and how long you have been living here. Be prepared and open to providing the judge all of the information needed to figure out what type of relief you qualify for.

Some of the types of relief from removal that might be available to an undocumented immigrant who is in immigration court are:

    1. Family-based adjustment of status. This is a way of changing from nonimmigrant to immigrant status in order to get legal status in the United States through a family member or a spouse, most likely a U.S. citizen. Usually (among other requirements), you have to have entered the U.S. legally to qualify for adjustment. But a few exceptions to the legal-entry requirement are available.

    2. Asylum. This is a form of protection for people who have fled persecution or fear future persecution in their home country. A grant of asylum allows legal status in the U.S., a work permit, and eventually a green card. See Asylum and Refugee Status.

    3. Withholding of removal. Although much 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, it might be your only option if certain bars to asylum apply to you. A person who is granted withholding can stay in the U.S. and can get work authorization.

    4. Protection under the Convention Against Torture (CAT). Protection under CAT is available only if it is "more likely than not" that the government of the applicant's home country—or some person or group the government cannot control—will torture that person. 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 U.S. permanent residence or travel internationally. But CAT recipients do usually receive permission to remain and work in the United States.

    5. Cancellation of removal for persons who are not lawful permanent residents. This remedy 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).

    6. Cancellation under the Violence Against Women Act (VAWA). Similar to cancellation of removal for non-permanent residents, applicants for VAWA cancellation must show that they have been "battered or subjected to extreme cruelty" by a "qualifying relative" and meet other requirements, including three years of physical presence in the U.S. and good moral character.

    7. Voluntary Departure. If all else fails, this offers a way to leave the United States without staining your immigration record with a past order of removal (which can make returning to the U.S. even harder) Discuss with an immigration attorney whether voluntary departure would benefit you based upon your immigration history and how you entered the United States.

    8. 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. You would need to speak to the government attorney handling your case to negotiate this relief.

    9. Prosecutorial discretion (PD). This is a decision by the U.S. government agency that is trying to deport you to stop trying to do so. If you receive prosecutorial discretion, you might be able to apply for work authorization but would 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 is extremely hard to get, and must be discussed in advance with the government attorney handling your case.

    10. Private bills. Laws passed by the U.S. Congress can help an immigrant receive relief from deportation. This occurs very rarely and only if there are highly sympathetic facts. Private bills are usually an option only if no other forms of relief are available.

Getting Legal Help

If you are in removal proceedings and wish to avoid deportation, it is best to contact an licensed, competent, and experienced immigration attorney as soon as possible to discuss your potential options. The attorney can analyze your case, confirm or determine the defenses that you could put forward, gather documents and paperwork, draft legal arguments on your behalf, prepare any witnesses, and appear with you in immigration court for your hearings.

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