Possible Defenses to Deportation of an Undocumented Alien

If you are “undocumented”—meaning that you have no immigration status in the United States—and you are in “removal” proceedings, a few legal defenses are 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 as Charged

First, you may be able to show that the U.S. government was basically wrong to put you into removal proceedings, 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.

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 has 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 is unable to meet its burden of showing that you are removable, you can ask the IJ to close the case.

And even if DHS meets its burden and/or the IJ decides that you are removable as charged, you can still submit applications for relief from removal after the IJ has decided that you are removable.

Never lie to the immigration judge to try to show that you are not removable. If you lie to the IJ, you will probably lose any rights you may have had to apply for relief from removal (see next section, below), such as asylum. And, even if you can still apply for relief from removal, your past lie will make it unlikely that the IJ will believe anything you say in the future.

While being honest is important, you may 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 anybody who is in removal proceedings what types of relief from removal the person appears to qualify for. However, an attorney can spend more time with you, and give you a fuller explanation of what types of relief might realistically be available to you.

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 you might qualify for. This will let the IJ know that you know that it is his or her responsibility to advise you about all possible relief; and, more importantly, 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 may be available to an undocumented immigrants who is in immigration court are:

    1. Adjustment of status, most likely under Immigration and Nationality Act (I.N.A.) Section 245 or 245(i). This is a way of changing from nonimmigrant to immigrant status in order to get legal status in the United States. Usually (among other requirements) you have to have entered the U.S. legally to qualify for adjustment. But some 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, which allows legal status in the U.S., a work permit, and eventually a green card. See Asylum and Refugee Status.

    3. Withholding of removal. 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, a person who gets 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 your home country's government—or some person or group the government cannot control—will torture you. 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 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 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, an applicant for VAWA cancellation must show that he or she has been "battered or subjected to extreme cruelty" by a "qualifying relative" and meets 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 way to leave the U.S. without staining your immigration record with a past order of removal (which can make returning to the U.S. even harder), as described in Voluntary Departure vs. Deportation. You should 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, except that procedures have been formalized for certain young immigrants, as described in Who Qualifies for Deferred Action as an Immigrant Student or Graduate. You would need to speak to the government attorney handling your case to negotiate this relief.

    9. Prosecutorial discretion. This is a decision by the government agency that is trying to deport you to stop trying to do so. If you receive prosecutorial discretion, you may be able to apply for work authorization but will 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 must be discussed 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.

There may be other defenses and forms of relief that apply to your particular case. It therefore makes a lot of sense to hire a licensed, competent, and experienced attorney if you are in removal proceedings and wish to avoid deportation.

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