The Becraft Guide to Avoiding Deportation

Understanding the Deportation Process

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.

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.

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.

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, 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.

3. Withholding of Removal

Similar to asylum, withholding of removal prevents 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 prevent deportation to the home country.

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, resided in the U.S. continuously for at least seven years, and 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, demonstrate good moral character, and prove that removal would cause exceptional and extremely unusual hardship to a qualifying U.S. citizen or LPR family member.

6. Adjustment of Status

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).

7. Deferred Action and Prosecutorial Discretion

In some cases, immigration authorities may decide not to pursue deportation — known as prosecutorial discretion. One well-known form 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. Factors that may influence prosecutorial discretion include:

• Length of time in the U.S.
• Family ties in the U.S.
• Contributions to the community.
• Health issues.

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, 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 to reopen or reconsider. The appeals process can be complex, requiring legal expertise to navigate successfully.