What is Deportation Defense?

Deportation defense is the act of finding a legal way to avoid deportation. Common defenses include petitioning for legal status or asking for more time.
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by | Last updated Mar 6, 2020 | Published on Aug 19, 2015 | Immigration

If you are an undocumented immigrant and are involved in the removal process—meaning you have hearings in immigration court—there are several defenses that you can use in order to halt or slow down the deportation process.

For example, you can halt your removal proceedings by filing for:

  • Cancellation of Removal
  • Asylum
  • Voluntary Departure
  • DACA
  • Administrative Closure due to Prosecutorial Discretion
  • Visa or green-card eligibility
  • Many options you should discuss with an attorney

If you were brought to the United States as a child, have attended a U.S. school, and have not traveled outside of the country for a significant period of time, you may be eligible to apply for DACA to stop your deportation proceedings.

If your DACA application is subsequently approved, or sometimes even if the application is pending, you can close the removal action.

Typically, a conditional permanent resident will be involved in deportation proceedings if you fail to file your I-751 petition in a timely fashion.

The I-751 petition seeks to remove the conditions upon your residency.

If the petition is then renewed, usually the court will allow such renewal as a defense.

Administrative closure based on Prosecutorial Discretion refers to when the Department of Homeland Security decides you are not a priority for deportation.

These factors are listed generally in a recent Jeh Johnson memorandum on enforcement priorities, but a comprehensive listing of reasons for administrative closure is not possible to create.

A good immigration attorney will work with opposing counsel to explore possibilities for administrative closure when appropriate.

Other options to defend against deportation include U visas if you have been a victim of a crime and have been aiding in the investigation.

If your U visa is approved, the removal actions will end.

In certain cases, the deportation proceedings will close while your visa is pending.

The Violence Against Women Act can also protect you during deportation defenses if you are the victim of a crime, such as domestic violence.

Typically this defense only applies to you if you are married to a legal permanent resident or a U.S. citizen, or have been recently divorced from one.

If you are not married to your abuser, you can instead use the U visa as an alternate defense.

Additionally, the U.S. government has deemed some specific countries as under Temporary Protected Status, or “TPS.”

This status applies if it is unsafe for you to return based on the conditions in your country. If your home country has been granted TPS, you can use this status as a defense to your deportation.

A similar defense applies if you have either suffered harm or fear you may upon returning to your country.

In this case, you may be eligible to apply for asylum.

But you must show that such harm will constitute persecution that is based upon race, nationality, religion, or political views.

These and other situations may arise that could impact the outcome of removal proceedings.

For this reason it’s important to discuss removal proceedings with an experienced attorney.

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Ben Williams

Ben is a Richmond, Virginia immigration attorney, and a founding partner of Tingen & Williams. Ben leads the firm's immigration practice. Read More.

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