Deportation Defense: Strategies for Success

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Facing a removal case is stressful and may turn your life upside down. There’s hope in the form of immigration reliefs which our deportation defense attorneys apply strategically to increase the chances of an outcome in your favor.

How can you continue staying in the U.S.?

Deportation is a complex and time-sensitive process. It is far too crucial to manage on your own. To fight a removal order, you first and foremost need an immigration lawyer.

An immigration lawyer explains to you your options to fight your removal order. They prepare a deportation defense strategy based on the circumstances of your case.

An experienced immigration lawyer is your best bet to remain in the country. The likelihood of a positive decision increases when you’re represented by someone who has handled hundreds if not thousands of deportation cases.

What are the various deportation defense strategies?

The reason for deportation will largely dictate the strategy for your case. Common reasons for removal orders include –

  • Facing criminal conviction in the U.S., for which criminal waivers exist to prevent deportation
  • Expiration of your non-immigrant visa can be addressed by appealing for an adjustment of status or requesting asylum
  • Unlawful presence can be contested through non-criminal waivers

Let’s look at the waivers from deportation and ways to fight removal cases in detail.

Criminal waivers

212(c) waiver

If you’re a lawful permanent resident (LPR) threatened with deportation due to a former criminal conviction, you can challenge it with a 212(c) waiver and keep your status. To qualify, you must maintain a seven-year continuous residency after entering the United States.

If you’ve received a conviction for certain crimes, which puts you in danger of deportation, you can use the waiver under Section § 212(c) of the Immigration and Nationality Act (INA). You’re ineligible for this remedy if you served a minimum 5-year prison term on a felony conviction between November 29, 1990, and April 24, 1996.

In 1996, the 212(c) waiver was eliminated and replaced with a relief called cancellation of removal. Under it, you must demonstrate that your removal would cause extreme hardship to your U.S. citizen or legal permanent parent, spouse, or child.

In February 2014, the Board of Immigration Appeals (BIA) ruled to make section 212(c) relief available to immigrants who were previously removable, deportable, or ordered to be deported due to their criminal convictions.

212(h) waiver

The 212(h) waiver is available to certain non-citizen immigrants that wish to enter or remain in the United States, under Section 212(h) of the Immigration and Nationality Act (INA).

It is a discretionary form of relief, that is, the decision to grant or deny the waiver is up to the discretion of the U.S. government. 212(h) waives certain grounds of inadmissibility for non-citizens who are otherwise eligible to enter the U.S. but cannot due to their criminal history or past immigration violations.

To be eligible for a 212(h) waiver, you must meet certain requirements. It includes having been convicted of a crime, having committed fraud or misrepresentation in connection with an immigration application, or having engaged in certain unlawful activities. You must also demonstrate that the denial of admission to the U.S. would cause extreme hardship to your U.S. citizen or lawful permanent resident spouse, parent, or child.

EOIR-42A waiver

The EOIR-42A waiver is a form of voluntary departure allowing non-citizens to leave the U.S. at their own expense within a specified period of time, usually between 120 and 180 days. By accepting the EOIR-42A waiver and leaving the country, you can avoid a formal removal order, which could have serious consequences for your ability to return to the U.S. in the future. However, you must agree to waive your right to pursue certain forms of relief from removal, such as asylum, cancellation of removal, adjustment of status, or other forms of relief.

To be eligible for the EOIR-42A waiver, you must meet certain criteria. It includes having pending cases in immigration court, not having committed certain crimes, and not having previously been granted voluntary departure or certain other forms of relief. The decision to grant or deny the waiver is made by an immigration judge, and you must agree to depart the U.S. voluntarily within the specified timeframe and at your own expense.

Non-criminal waivers

You may be ineligible for a green card for reasons other than a criminal record. These non-criminal grounds of inadmissibility include providing false information on your application, an inability to support yourself financially, or having a communicable disease of public health significance. The common noncriminal waivers are –

 I-601A provisional waiver 

This relief is available if you’re inadmissible due to being unlawfully present in the United States. To be eligible for the I-601A provisional waiver, you must:

  • Be the immediate relative of a U.S. citizen
  • Be physically present in the U.S.
  • Have an approved I-130 petition, and
  • Demonstrate that your U.S. citizen spouse or parent would face extreme hardship if you were denied entry

I-601 waiver

This form of relief is available on certain grounds, such as past immigration violations, criminal history, or health issues. To be eligible for the I-601 waiver, you must demonstrate that your inadmissibility would cause extreme hardship to your U.S. citizen or lawful permanent resident spouse or parent.

To apply for the waiver, you must file Form I-601 along with supporting evidence, such as affidavits, medical records, and financial documentation.

Form I-602

Form I-602 is designed for individuals seeking refugee or asylum status but considered inadmissible. It also covers those who’re already a refugee or asylee and applying for permanent residency but regarded as inadmissible. In this case, inadmissibility can be waived on the grounds of family unity, national interest, or humanitarian reasons.

Applying for Permanent Residence or Adjustment of Status

Another deportation defense strategy during removal proceedings is to apply for permanent residency or an adjustment in status. The requirements for adjustment of status include showing –

  • You’re admissible to the U.S.
  • You have an employer sponsor
  • You have a qualifying relative who is a U.S. citizen or green card holder
  • You haven’t violated any immigration law
  • The qualifying relative has filed a visa petition for you, it has been approved by the USCIS, and your visa number or priority date are immediately available

Form I-751 Renewal

Marriage-based permanent resident status is conditional and valid for two years. Before the end of the two-year period, the couple is required to jointly file Form I-751 requesting the removal of the conditional status. The couple must also submit proof that the marriage was entered into in ‘good faith’ and not to circumvent immigration laws. Failing to do so will cause the beneficiary to lose status. It may also lead to removal proceedings.

In such a situation, a joint I-751 petition is the suitable deportation defense. Once approved, the conditional status is removed and the beneficiary receives a 10-year permanent resident card. The beneficiary can also request a waiver of the joint filing requirement if their status and removal would cause extreme hardship. Another reason is if the marriage ended by divorce or annulment, so long as the good faith condition is met. Yet another possibility is if the beneficiary can establish that they have been a victim of domestic violence or experienced extreme cruelty.

Deferred Action for Childhood Arrivals (DACA)

DACA provides temporary relief from deportation and work authorization to young undocumented immigrants. It neither grants immigrant status nor provides a path to citizenship.

DACA recipients must renew every two years – an expired DACA status can attract deportation and have serious consequences for the recipient’s employment. Failure to renew will tantamount to unlawful presence and longer the accumulated time in an unlawful presence, the more severe the effect on the recipient’s chances of a permanent residence in the future.

The DACA program, which was enacted in 2012, has created generations of successful DREAMERS. According to data from the American Community Survey, roughly 56,000 DACA recipients make nearly $567 million in mortgage payments and pay $5.6 billion in federal taxes each year.

Filing DACA is a complicated process. Our immigration attorney will evaluate whether it is the right route to help avoid deportation. We also help DACA recipients obtain a Green Card, which is possible by showing employer sponsorship, marriage to a U.S. citizen, or other conditions.

Violence Against Women Act (VAWA)

VAWA is a useful deportation defense for immigrants in removal proceedings who’ve been victims of physical or emotional abuse by a U.S. citizen or lawful permanent resident. This individual can be their parent, spouse, domestic partner, or child. If you’ve experienced cruelty at the hands of your sponsor, you can file your VAWA petition independent of them. Your abuser won’t be notified, so you can go ahead with confidence and without fear.

You can go on to get a green card through VAWA, which will be valid for 10 years, and then apply for a permanent green card.

U Visa

U visas were created for immigrants who’re victims of serious crimes and suffered physical or mental injury as a result. They must be willing to provide helpful assistance to law enforcement agencies in investigating these crimes.

As a U visa applicant, you can qualify for waiver for inadmissibility. A U visa permit allows you to stay in the U.S. and obtain work authorization for up to four years. After maintaining your U nonimmigrant status for three years, you can apply for permanent residency.

This deportation defense strategy is preferable when you don’t have a qualifying relative to apply. That is, your abuser is not authorized to live in the U.S., or the two of you aren’t married.

Temporary Protected Status (TPS) and Nicaraguan Adjustment and Central American Relief Act (NACARA)

The TPS status allows beneficiaries from designated countries a temporary stay of deportation if conditions in those countries make their return unsafe. It also grants assurance that they will not be detained by the DHS, and allows work and travel authorization. This temporary immigration status by itself does not allow you to apply for permanent residency. However, if you meet eligibility requirements, you can explore other options to gain lawful permanent residency.

NACARA suspends or cancels the deportation of eligible nations from Guatemala, El Salvador, and former Soviet-Bloc countries. Eligibility requirements under the law are as follows:

  • You’ve been in the U.S. on a continuous basis for seven years or more
  • You demonstrated good moral standing in the prescribed period
  • You must not be removable on any criminal ground
  • Your deportation would cause extreme hardship to an American citizen or permanent resident who is a spouse, child, or parent
  • You are deserving of the deportation relief

10-Year Cancellation

You can have your removal cancelled if you’ve been living in the U.S., even without lawful status, for at least ten years. You will also need to meet other requirements to apply for this form of relief.

The consequences of deportation can be severe, from family separation to loss of income. For some, it can be a matter of life or death. Potent removal defense strategies from seasoned attorneys will help you emerge from turmoil and get your life back on track.

A quick glimpse into our personal approach

We have successfully represented many applicants for all the waivers and visas discussed so far. Our strength lies in our experience and commitment to crafting personalized removal defense strategies.

Every case is unique and we weigh all details to determine a deportation defense strategy most likely to succeed. We consider your explanation of your situation, gather provable facts and physical evidence as required, understand the government prosecutor’s strategy and history, and examine the judicial precedent.

Together, we can secure your win!

Protesting your deportation is your right. A strong defense puts you in an advantageous position. For that, you must be fully onboard. Contact us immediately after you’re notified that you’re being deported. Share facts and stories of your case honestly. Be open to understanding the immigration laws that apply to your situation.

Get dedicated legal counsel from a trusted San Jose immigration lawyer now. Feel free to reach out with your questions.

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