What Are Your Legal Rights If You Might Be Deported? How Do You Go About Avoiding Deportation?
Deportation, also known as removal, is a serious and often distressing process in which a non-citizen is ordered to leave a country due to a violation of immigration laws. If you or someone you know is facing the risk of deportation, it is crucial to understand the legal options available as to avoiding deportation. Several legal recourses can help challenge removal orders and provide avenues for remaining in the country lawfully. Below, we will explore these legal options in detail, offering a comprehensive guide to understanding deportation defenses, appeals, and potential relief measures. Nevertheless, the complexity of the processes and the high stakes involved mean you will almost certainly need professional assistance. At the Law Office of Todd Becraft, we bring many years of experience helping people just like you to avoid getting deported. In order to help prepare you for this process, we offer a step-by-step guide on how to avoid getting deported and what to expect along the way.
Understanding the Deportation Process and Avoiding Deportation
Before diving into legal recourses, it is important to understand how deportation proceedings work. Deportation typically begins with an arrest or a notice to appear (NTA) before an immigration judge. The U.S. Immigration and Customs Enforcement (ICE) agency is responsible for enforcing deportation orders in the United States. Other countries have their own immigration enforcement agencies.
The process generally follows these steps:
- Issuance of a Notice to Appear (NTA): This document outlines the reasons for the removal proceedings and specifies a court date.
- Master Calendar Hearing: This initial hearing allows the non-citizen to respond to the charges and request relief.
- Individual Hearing: If relief is sought, a separate hearing will be scheduled to present evidence and legal arguments.
- Decision by the Immigration Judge: The judge will either grant relief or issue a deportation order.
- Appeals: If the judge orders deportation, the individual may have options to appeal the decision.
- Removal or Stay of Removal: If all legal options are exhausted, the individual may be deported or granted a stay of removal.
Understanding these steps is essential for anyone who may face deportation, as it helps in preparing a defense and utilizing all available legal options.
Legal Recourses For Avoiding Deportation
There are several defenses and legal recourses available for individuals facing deportation. Each case is unique, and seeking legal counsel is crucial for determining the best course of action.
1. Challenging the Deportation Charges
One of the first steps in fighting deportation is challenging the legal basis for removal. Possible defenses include:
- Procedural Defects: If the NTA contains incorrect information, or if the government fails to follow proper procedures, the case may be dismissed.
- Lack of Evidence: The government must prove that the individual is removable. If sufficient evidence is lacking, the case may be dismissed.
- Unlawful Arrest or Detention: If an individual’s rights were violated during the arrest or detention process, the removal proceedings could be challenged.
An experienced immigration attorney can help identify flaws in the government’s case and develop a defense strategy that challenges the basis for deportation.
2. Asylum and Protection from Persecution
Individuals who fear persecution in their home country due to race, religion, nationality, political opinion, or membership in a particular social group may apply for asylum. To be eligible for asylum, an applicant must:
- File the application within one year of arrival in the U.S. (or show exceptional circumstances for late filing).
- Demonstrate a credible fear of persecution.
- Provide evidence supporting the claim.
If asylum is granted, the applicant can remain in the U.S. and eventually apply for permanent residency.
Asylum applicants should gather as much evidence as possible, including witness statements, news reports, and documentation of past persecution. Legal assistance is crucial in navigating the complex asylum application process.
3. Withholding of Removal
Similar to asylum, withholding of removal avoids deportation if the individual can prove they would face persecution in their home country. However, the burden of proof is higher than for asylum, and withholding of removal does not provide a direct path to permanent residency.
This form of relief is particularly useful for individuals who miss the one-year deadline for asylum applications or who have been convicted of certain crimes that bar them from asylum eligibility.
4. Protection Under the Convention Against Torture (CAT)
Individuals who can prove that they are likely to face torture by the government or with government acquiescence if returned to their home country may qualify for protection under CAT. Unlike asylum, this protection does not lead to permanent residency but it does mean avoiding deportation to the home country.
CAT protections are crucial for individuals fleeing countries with histories of government-sponsored violence or human rights abuses. Immigration attorneys specializing in human rights law can help strengthen CAT claims.
5. Cancellation of Removal
Cancellation of removal is a form of relief available to certain individuals who have established strong ties to the U.S. Eligibility criteria vary depending on whether the applicant is a lawful permanent resident (LPR) or a non-permanent resident.
- For Lawful Permanent Residents:
- Must have been an LPR for at least five years.
- Must have resided in the U.S. continuously for at least seven years.
- Must not have been convicted of an aggravated felony.
- For Non-Permanent Residents:
- Must have been physically present in the U.S. for at least ten years.
- Must demonstrate good moral character.
- Must prove that removal would cause exceptional and extremely unusual hardship to a qualifying U.S. citizen or LPR family member.
The process for cancellation of removal requires significant documentation and legal representation to present a compelling case before an immigration judge.
6. Adjustment of Status for Avoiding Deportation
Some individuals facing deportation may be eligible to adjust their status to that of a lawful permanent resident (green card holder). This option may be available if:
- The individual has an immediate family member who is a U.S. citizen or lawful permanent resident and can petition for them.
- The individual qualifies under certain employment-based categories.
- The individual qualifies under special programs such as the Violence Against Women Act (VAWA) or special immigrant juvenile status (SIJS).
Adjustment of status can serve as a powerful defense in removal proceedings and provide a pathway to lawful residency.
7. Deferred Action and Prosecutorial Discretion
In some cases, immigration authorities may decide not to pursue deportation. This is known as prosecutorial discretion. Factors that may influence this decision include:
- Length of time in the U.S.
- Family ties in the U.S.
- Contributions to the community
- Health issues
One well-known form of deferred action is Deferred Action for Childhood Arrivals (DACA), which provides temporary relief from deportation to certain undocumented immigrants who arrived in the U.S. as children.
8. Voluntary Departure
If no other legal remedies are available, an individual may request voluntary departure. This allows them to leave the U.S. on their own terms rather than being forcibly removed. This method for avoiding deportation has some advantages, including the ability to reapply for legal entry in the future without the penalties associated with deportation.
9. Appeals and Motions to Reopen
If a removal order is issued, there are still opportunities to challenge the decision through appeals and motions. The appeals process can be complex, requiring legal expertise to navigate successfully.
Conclusion: Avoiding Deportation in a Nutshell
Deportation is a serious legal matter, but numerous legal options exist for individuals at risk of removal. Seeking immediate legal counsel is essential. Immigration law is complex and constantly evolving, and having an experienced attorney can make a significant difference in achieving a favorable outcome.
Additionally, advocacy organizations and community support groups play a vital role in providing legal assistance, educational resources, and emotional support. The process can be lengthy and challenging, but with the right legal strategies and persistence, individuals facing deportation have several avenues to seek relief and remain in their country of residence.
