Both documented and undocumented immigrants in the United States can be at risk of deportation. Being placed in removal proceedings can be a frightening scenario for both you and your family. If you are facing deportation, it’s essential to understand your rights and the types of deportation defenses that could help you remain in the country. Here’s what you need to know:
If you are flagged for removal, you could be eligible for any of the following deportation defenses:
Adjustment of Status
You may be eligible to obtain a green card through adjustment of status if you meet the following requirements:
- You have legally entered the United States.
- You are considered admissible and have not been barred from entry into the United States.
- You have a relative who is a legal permanent resident or U.S. citizen.
- You have a visa petition that has been approved by the U.S. Citizenship and Immigration Services (USCIS).
- You have a visa number and immediately-available priority date.
- You have not violated any immigration laws.
Adjustment of Status Through I.N.A. Section 245(i)
Undocumented immigrants who have entered the United States unlawfully may be eligible to apply for an adjustment of status through Section 245(i). You must meet the following requirements:
- You are a beneficiary of a visa petition or labor certification that was filed with the USCIS or Department of Labor on or before April 30, 2001.
- You are a beneficiary of a visa petition or labor certification filed with the USCIS or Department of Labor between January 15, 1998, and April 30, 2001.
- You can prove you were physically present in the U.S. on December 21, 2000.
Applying for adjustment of status under Section 245(i) is an extremely complicated process. It will be necessary to enlist the help of an immigration attorney as soon as possible.
Cancellation of Removal
If you’ve received a notice to appear before immigration court, cancellation of removal may be the defense that could save you from deportation. Both lawful permanent residents and those without legal status may be eligible for cancellation of removal under the following:
Cancellation of Removal (42A) for Lawful Permanent Residents
If you are a green card holder facing deportation, the following must be proven in immigration court:
- You’ve had permanent residency status for at least five years at the time of application filing.
- You have continually lived in the United States for at least seven years after being admitted in any status.
- You have not been convicted of an aggravated felony.
- You have not applied for cancellation of removal (212c) in the past.
- The reasons you deserve to keep your green card.
Cancellation of Removal (42B) for Those Without Lawful Status
If you are without legal status and facing deportation, you must prove the following in immigration court:
- You have been living in the U.S. for at least 10 years before receiving notice of removal.
- You have been a person of good moral character during your presence in the U.S.
- You’ve not had any convictions involving offenses involving moral turpitude.
- Your removal will cause extreme hardship for a U.S. citizen or lawful permanent resident who is an immediate family member.
Violating immigration laws can place you in removal proceedings. However, certain immigration violations may be “forgiven” through an immigration waiver. The following are the most common types:
212(i) Waivers may help resolve situations in which an individual has fraudulently or willfully misrepresented themselves by providing false information or documents during the visa process.
212(h) Waivers may be able to help someone who was convicted of prostitution or other crimes of moral turpitude to keep their green card and avoid deportation.
212(c) Waivers could be used to give legal permanent residents who were convicted for criminal activity as a way to avoid deportation. A 212(c) waiver cannot be granted for the following reasons:
- An individual has departed and is living outside of the U.S.
- An individual has unlawfully returned to the U.S. after removal or deportation.
- The individual is in the U.S. without admission or parole.
I-601 and I-601A Waivers may help with:
- Individuals with prior criminal convictions
- Unlawful presence in the United States
- Misrepresentation and other grounds for inadmissibility into the United States
It’s critical to understand that if you have filed an I-601 waiver and were denied, you will not have an option to appeal the decision. This is why you must contact an immigration attorney from the start of your case to avoid any mistakes that could cost you a favorable decision.
If you’ve had a conviction judgment, it may be challenged through post-conviction relief. You may be able to use post-conviction relief as a deportation defense if:
- You were not adequately advised by your lawyer or the court how the consequences of a guilty plea would affect your immigration status.
- Your criminal defense attorney failed to represent you effectively and thoroughly. For example, your criminal defense attorney did not perform the following related to your case:
- Investigate your claim appropriately.
- He/she was careless in the discovery process.
- Did not adequately examine all ways in which to present your defense.
- New evidence was discovered that would have affected the outcome of your case. For example, new witnesses have surfaced that can help your defense.
- The prosecution has withheld evidence that could clear you from blame (exculpatory evidence).
Foreign nationals can seek asylum in the U.S. for protection if they fear persecution in their home country. To be eligible for asylum, you must prove that you are unable to return to your home country because you have a substantiated fear of past or future persecution. You must also show that the persecution that you are subjected to is on account of the following:
- Your race
- Your religion
- Your nationality
- Your membership in a particular social group
- Your political opinion.
When seeking asylum, it must be done in a timely manner, so it’s imperative to enlist the help of an immigration attorney who has extensive experience with asylum cases.
Your Rights When Facing Deportation
No matter what your immigration status, you are protected under the U.S. Constitution. When questioned by I.C.E. or any other law enforcement official, you have the following legal rights:
The right to remain silent - you are not obligated to disclose your immigration status or give any personal information about yourself or your family to any member of law enforcement. Any information you disclose may be used against you in immigration court.
The right to refuse a search - a law enforcement official may not search you or your belongings without consent unless they have probable cause to do so. You have the right to say no.
When authorities are questioning you about your immigration status, let them know you want to exercise your right to remain silent. Contact an immigration attorney immediately before answering any questions.
Most Common Reasons for Deportation
The following are the top reasons why immigrants may face deportation.
- Conviction of a crime is the number one reason why immigrants face deportation.
- Marriage fraud or a “sham marriage” is a federal crime. Marriage fraud involves entering into a marriage for the sole purpose of obtaining a green card and circumventing U.S. immigration laws.
- Pretending to be a U.S. citizen to receive U.S. benefits, such as public assistance, has serious consequences such as deportation and other penalties.
- Illegal entry into the United States without being inspected by an immigration or border patrol officer is grounds for deportation.
When to Contact an Immigration Attorney
When it comes to deportation matters, time is of the essence. It’s imperative to contact an immigration attorney the moment you are notified that you are being deported. Attempting to take on a deportation matter alone will be a daunting task — especially when trying to navigate complicated immigration laws. A skilled immigration attorney can advise you on the best deportation defense for your situation. You will be guided through the application process and assisted with gathering all necessary documentation and evidence that will be helpful to your deportation case.
For all immigration matters, contact Yekrangi & Associates today at (949) 478-4963. Having a skilled immigration attorney on your side can make all the difference to the outcome of your case.