Defenses and Other Options
You cannot be deported if you are a U.S. citizen (U.S.C.). If you were born in the U.S. or you naturalized, it is easy to determine that you are a USC. However, you may also be a USC based on your parents’ status. You may be a citizen even if you were born in another country if both of your parents naturalized and you were (1) under 18, (2) living in the U.S., and (3) you had a green card.
If one of your parents had sole custody of you (either because he/she was granted sole legal custody or because your other parents died), only that parents must have naturalized before you turned 18.
If you were still 18 on February 27, 2001, you may be a citizen even if only one parent was a USC before you turned 18. That one parent must have had physical and legal custody of you, but not sole legal custody.
There are three kinds of cancellation of removal: (1) one for LPRs, people who have green cards, (2) one for those without documents, and (3) one for victims of domestic violence. Cancellation of removal is only available once in your life, so if you have other options for relief, you should try those first. Also, if you’ve every been granted cancellation of removal before, you can’t get it again.
If you have a green card, to qualify you must prove three things: (1) you have had your green card for 5 years, (2) you have resided (lawful) continuously in the U.S. for 7 years, and (3) you have no convictions for aggravated felonies.
If you do not have a green card, you must also prove three things: (1) you have been (not necessarily lawful) continuously in the U.S. for at least 10 years, (2) you were a person of “good moral character” during those 10 years, and (3) deporting you would cause “exceptional and extremely unusual hardship” to your USC/LPR spouse, parent or child. Hardship to yourself is irrelevant. Some crimes will keep you from qualifying for this type of relief.
To qualify for cancellation of removal for victims of domestic violence you must show one of the following: (1) you have been battered or subjected to extreme cruelty by a USC/LPR spouse or parent, (2) you have been battered or subject to extreme cruelty by a USC/LPR you intended to marry, but the marriage wasn’t legitimate because that spouse was still married to someone else, or (3) your child has been battered or subjected to extreme cruelty by a USC/LPR parent. In addition, you must show that: (1) you have been (not necessarily lawful) continuously in the U.S. for the last 3 years, (2) you were a person of “good moral character” during those 3 years, (3) you have not been convicted of any aggravated felonies, and (4) it would cause you, your child or your parent extreme hardship if you were deported. Even if the abuser no longer has his/her status as a USC/LPR, you may qualify for this type of relief. Remember that women are not the only victims of domestic violence and that abuse is not always physical.
For all three types of cancellation of removal, note that if you left the U.S. for 90 days at one time or 180 days total during the qualifying time period, your presence or residence may no longer be considered “continuous.”
Asylum, Withholding, and C.A.T.
If you are afraid to return to your country because you think someone would try to hurt you, you may qualify for asylum, withholding of removal, or relief under the Convention Against Torture. You can apply for all three of these forms of relief on the same application.
You may qualify for asylum if you have been persecuted in the past or fear you would be persecuted if returned to your country. The persecution must be because of one of the following: (1) race, (2) religion, (3) nationality, (4) political opinion, or (5) membership in a social group. The persecution must be by the government or by someone the government is unable or unwilling to control. There are a number of bars to asylum, including conviction of a serious crime. Generally, you must apply for asylum within one year of arriving in the U.S. If you are granted asylum, you are granted lawful status in the U.S. and you can apply for a green card after one year.
The requirements for withholding of removal are similar to those for asylum, but the Judge has to be more certain that you would be harmed if you were returned to your country. There are bars to withholding too, but they are not as restrictive as those for asylum. Even if you have been convicted of an aggravated felony, as long as you were sentenced to less than 5 years of imprisonment, you may still qualify. Also, there is no one-year deadline for applying. However, if you are granted withholding, that will not lead to a green card, although you will get work authorization. It is also possible, though not likely, that you could be deported to another country or detained indefinitely.
If you do not qualify for asylum or withholding of removal, you may qualify for relief under the Convention Against Torture. If you would be in danger of being tortured if you were returned to your country, the Judge cannot send you back. The torture does not have to be because one of the 5 reasons under asylum and withholding. Also, there are almost no bars to this relief. However, as with withholding, a grant does not lead to a green card, or even necessarily a release from detention. Also, it is possible that if conditions in your country improve, you could be sent back. Finally, it is possible, though unlikely, that you could be deported to another country.
If you have been convicted of an aggravated felony, you will not be eligible for many forms of relief. Usually, it will state on your NTA whether you have been convicted of an aggravated felony. Many crimes are considered aggravated felonies under immigration law. These include: (1) murder, (2) rape, (3) sexual abuse of a minor, (4) drug trafficking , (5) firearms trafficking, (6) violent crimes with a sentence of at least one year, (7) theft with a sentence of at least one year, and (8) unlawful entry after you were deported for an aggravated felony.
If you have been convicted of an aggravated felony, but otherwise would qualify for some sort of relief, you may try and reopen your criminal case. The Immigration Judge has no power over your criminal case, so you will have to go back to the criminal court where you were convicted to do this. If you choose to do this, you will need to hire a criminal attorney or contact the public defender at that court. However, the Judge may not be willing to allow you time to reopen your criminal case, especially if you have multiple convictions or it seems unlikely that you would be able to change your conviction or sentence
You may be able to argue that the conviction DHS claims is an aggravated felony is not actually an aggravated felony, but this is an argument you should make through a lawyer. These types of arguments are often very complicated and require a great deal of work.
Waivers are like pardons. Even if you qualify, it’s the Judge’s decision whether to give you one. The first type of waiver applies to those who pled guilty or no contest to a crime before April 1, 1997. To qualify for this waiver, you must have a green card and you must have lived in the U.S. legally for at least 7 years. If you have other guilty pleas after April 1, 1997, you don’t qualify for this waiver unless those crimes are non-deportable.There are some other additional requirements as well. If you do qualify for the waiver, you will need to convince the Judge that you have been rehabilitated and that there are reasons the Judge should allow you to stay in the U.S.
The other type of waiver is also for those who have green card, with certain exceptions, and have lived in the U.S. for at least seven years. To qualify, you must: (1) have no aggravated felony convictions, (2) have no drug convictions, and (3) have a USC spouse or child over 21. If you do not have a green card, it is still possible that you will qualify for this waiver. However, to do so requires that: (1) someone filed an I-130 for you and you have an immigrant visa available, (2) you entered the country on a visa but are now out of status, and (3) you have a USC/LPR spouse, parent, or child to whom your deportation would cause extreme hardship. This type of waiver requires filing many forms and is quite complicated. If you believe you may qualify for this waiver, you should hire a lawyer.
Voluntary departure may be the best option if you who do not have serious criminal convictions but do not qualify for relief that would allow you to remain in the U.S. If you are granted voluntary departure, you must leave the country and pay for your travel, but there is no order of removal on your record. That may make it much easier for you to return to the country legally in the future.
If you request voluntary departure before or at your master calendar hearing, you cannot request any form of relief and you must: (1) concede removability, (2) waive appeal, and (3) not be deportable as an aggravated felon or terrorist.
If you request voluntary departure at the end your individual removal hearing, you must show that: (1) you have been in the U.S. for at least 1 year, (2) you have shown “good moral character” for at least the past 5 years, (3) you are not be deportable as an aggravated felon or terrorist, (4) you were not previously granted voluntary departure after having been found inadmissible as having been illegally present in the U.S., and (5) you have the ability and intent to leave the U.S. In order to satisfy this last requirement, you must have a valid travel document and money to pay for your travel. You can collect this money after your hearing. A bond of at least $500 is required for voluntary departure granted at the end of the removal hearing. You must post this bond within 5 days of the Judge’s order.
If you are granted voluntary departure, but have been in the U.S. illegally, there are certain time-bars to your returning to the U.S. If you were in the U.S illegally for more than 180 days, but less than one year, you will be barred from returning to the U.S for 3 years. If you were in the U.S for more than one year, you will be barred from returning for 10 years.
If you are deported, rather than granted voluntary departure, the time-bars for returning to the U.S. are different. If you were deported as an aggravated felon, you may never return. If you were ordered removed before, you are barred from returning for 20 years. If this is your first deportation order and you have not been convicted of an aggravated felony, you are barred from returning for 10 years. If you are charged as an arriving alien and then deported, you are barred from returning for 5 years.
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Rocky
Mountain Immigrant Advocacy Network
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