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With deportations on the rise, what are my defenses?

April 11, 2014
Minsky, McCormick & Hallagan

With deportations occurring at a record pace under the Obama Administration, more immigrants than ever are facing separation from their families and lives in the U.S. President Obama has said that his administration is focusing solely on “criminal” immigrants, and that their deportations will make our communities safer.  However, a recent New York Times analysis of deportations has shown that the majority of recent deportations involves individuals with no criminal record at all or minor criminal violations, such as driving without a license.

So if you are one of the two million people facing deportation under the Obama Administration and your case is still pending before an Immigration Judge, what defenses might you have? We’ve previously discussed the rights you have when detained by ICE (at which point, you may be sent to immigration court) or when you are in immigration court. So today, we’ll shed some light on possible defenses to deportation. As there are many types of cases each year in our nation’s immigration courts, this is a very brief review only of some of the most common defenses to deportation.

Cancellation of Removal for lawful permanent residents (or LPRs)

This defense is available to LPRs or green card holders. You can apply for this defense to deportation if you meet the following criteria:

  1. You have been a lawful permanent resident for five years;
  2. You have been in the U.S. in any form of lawful status for seven years; and
  3. You have not been convicted of an “aggravated felony.”

You will also have to show the judge that you deserve to win your case. If you win your case, you will keep your green card and the judge will terminate your deportation case.

That sounds easy enough, right? Not quite. As with everything in immigration, although these requirements seem simple, each one is complicated by additional requirements. The imaginary clock that counts the five years as an LPR can be stopped if you commit a number of crimes. For example, if you have had your green card for three years when you commit burglary, your “clock” would stop running and you would not be able to meet the requirement of five years as a LPR. Additionally, “aggravated felony” is specifically defined by the Immigration and Nationality Act, so even some misdemeanors can count as aggravated felonies.

Cancellation of Removal for non-permanent residents

This defense is available for undocumented individuals or those who may have had some lawful immigration status (like a tourist or student visa) at some point but no longer have lawful status. You can apply for this defense if the following is true:

  1. You’ve lived in the U.S. for over ten years (dating back from the date you are sent to Immigration Court);
  2. You have not committed any of a large variety of crimes;
  3. You have been a person of “good moral character” as defined by the Immigration and Nationality Act; and
  4. You have U.S. citizen or LPR parents, spouse, or children.

You must show that your relatives will suffer “exceptional and extremely unusual hardship” if you are deported, and that you deserve to win your case.

If you win your case, the judge will terminate your court case and you will become a lawful permanent resident (get a green card). However, these can be very difficult cases to win, as the standard by which the judge considers how much your relatives will suffer is extremely high (much more than the general suffering that comes with any person’s deportation). Moreover, by law, only 4,000 of these cases can be granted each year.

Adjustment of Status

Many different types of people can apply for adjustment of status (i.e. residency or a green card) in Immigration Court based on certain relationships with U.S. citizens, LPRs, or an employer. The most common scenario in which an individual qualifies for adjustment of status is where a foreign national marries a U.S. citizen. The spouse of a U.S. citizen will qualify for adjustment if:

  1. He/she was inspected or admitted to the U.S. (entered with permission using some sort of visa);
  2. Has a visa number available to them, which means that the U.S. citizen spouse has filed a petition for his/her spouse, which has already been approved or will likely be approved; and
  3. Is “admissible” to the U.S., as defined by the Immigration and Nationality Act.

While the requirements above pertain to spouses of U.S. citizens, there are many other relationships that could qualify a foreign national for adjustment of status, such as a parent applying for a child, or a sibling applying for a sibling. For more information, please feel free to contact our firm. For more information on the general principles of employment-based residency, read our previous post on that topic.

Asylum and Withholding of Removal

If you fear return to your home country, you may be able to apply for asylum or withholding of removal. Generally speaking, these defenses may be available without regard to current immigrant status, with some specific limitations such as your criminal history and when you entered the U.S. in relation to when you applied for asylum.

To win your case, you must show that you cannot return to your home country for three reasons:

  1. You fear persecution (very serious harm);
  2. Your fear stems from your government or forces that your government cannot control, meaning the government cannot protect from those you fear; and
  3. The harm you face or faced in the past is because of one of five central reasons: your political opinion, your religion, your race, your nationality, or your membership in a particular social group.

In order to apply for asylum, you must apply for it within one year of entering the U.S. or show that a specific exception applies to your late filing. If you win your asylum case, you become an “asylee” and may apply for permanent residency (a green card) after one year.

You can apply for withholding of removal at any time after you enter the U.S. If you win your withholding of removal case, you do not get the opportunity to apply for permanent residency, but you will receive work authorization and you will not be deported as long as the harm you fear in your home country still exists.

Asylum and withholding of removal are very complicated and for each one, there are more specific requirements; if you fear returning to your home country, please contact us for a more detailed discussion of your eligibility.

Defenses to deportation are far more numerous and complicated than discussed here – we only touched the tip of the iceberg. If you or a loved one have a case before an immigration judge and would like to discuss your options, you may contact us at 312-427-6163 or via our website.

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