At times the U.S. government will discover something that may disqualify an immigrant from being allowed to stay in the U.S. When this happens the individual is sent a Deportation Notice, or Notice of Removal. In some cases you are provided a specific date that you must leave the U.S. by, and in other cases you may be sent back to your home country (or country of last residence).
Reasons that may disqualify you, or make you “inadmissible” to the United States may include (but is not limited to):
- Conviction of a felony criminal act or history of criminal behavior
- Conviction of a drug related crime or history of such
- Conviction of a crime against a child or history of such
- Evidence of terrorist ties
- Committing espionage
- An expiring (or expired) visa
- Your qualifying marriage was found to be fraudulent
- Violation of U.S. Immigration Laws (e.g. entering the country illegally)
- Diagnosis of a communicable disease (e.g. Tuberculosis)
- Drug abuse
There are several avenues available for individuals who are facing deportation or removal, and even for those who have already left the U.S. These avenues include:
When a green card is first issued, it is on a conditional basis for two years. As the end of the two years approaches, individuals are supposed to file Form I-751 to remove their conditional status and be granted full permanent residency. The conditional status does not come off on its own and at the end of the two years, the green card expires. Failure to file the Form I-751 can lead to a deportation order. As a defense, we can request a renewal, or extension to file the Form I-751 to get you (or your immediate family member) back on track to receive their green card.
Although nearly all applications for permanent residency (or a green card) are made before receiving a removal or deportation notice, it can be filed as a defense against deportation. This is usually an option for individuals who have a family-based visa that may have let the visa expire or missed the deadline to petition for their green card.
Criminal activity is one disqualifier that can make a non-citizen ineligible for permanent residency status, or violate the terms of their current visa – which leads to deportation. Criminal waivers are available to select, qualifying individuals that waives their criminal history, and keeps it from disqualifying them or making them “inadmissible”.
While you may not have committed a serious crime, you may be facing deportation due to a “bad act”. Acts such as lying on an application to keep from losing your eligibility, being “inadmissible” at the time you entered the U.S., or paying someone to smuggle a relative can get you into some hot water. A noncriminal waiver may be used in conjunction with other documentation to waive your actions and keep you from being deported.
Relatives of U.S. citizens or permanent residents, who entered the U.S. illegally, may request a I-601A waiver. If granted, the waiver will allow the individual to leave the U.S. and re-enter using the legal visa application process – without their unlawful presence being held against them.
Under asylum, the U.S. government grants safety to an eligible individual who has good reason to fear certain conditions in their home country. These ‘conditions’ usually imply harm has occurred, or will occur to that person should they return to their home country.
Foreign national may protected from deportation if their home country has been deemed by the U.S. government to be unsafe to return to, or their government cannot handle the return of their nationals. Qualifying scenarios may include: civil war or ongoing armed conflict, an environmental disaster, or other similar situation. If granted TPS, and individual cannot be deported.
Victims of crimes, including domestic violence, and informants may apply for a U visa in order to stop their deportation order.
You may apply, in writing, to the Immigration and Customs Enforcement (ICE) for prosecutorial discretion. You will need to include supporting evidence as to why you should be granted discretion. ICE can choose to issue a Stay of Removal or Deferred Action; they can also take back their deportation relief at any time.
Some individuals may be able to file EOIR-42B in order to cancel their deportation order. In most cases, the individual must be able to show that: (1)They were physically present in the U.S. for at least 10 years prior to receiving their Notice to Appear; (2) They maintained “good moral character” and have not been convicted of a crime during the same time period; and (3) That their parent, spouse, or child (who is a U.S. or permanent resident) will suffer an “extreme and exceptionally unusual hardship” if they were to be deported.
An appeal is made after an unsuccessful result in Immigration Court. It is made to the Board of Immigration Appeals to review (and hopefully reverse) the decision of the judge in your case. Typically an appeal is made when there was in error in how the law was applied to your case, or how the factual evidence was evaluated at trial.
An error in charges on your Notice to Appear can be grounds for filing a Motion to Terminate the proceedings against you.
If you were detained by law enforcement, including Immigration Customs Enforcement (ICE), and your constitutional Right to Due Process was violated, then we may be able to file a Motion to Suppress the evidence collected against you. If successful, we can then file a Motion to Terminate the proceedings against you.
A Motion to Reopen is a request for the Immigration Court to reopen your deportation or removal order and hold another trial. This is best done when there is a chance to present new evidence (or a change in circumstances) that will grant you a stay in the U.S. and provide the opportunity for you to obtain a green card.
A Motion to Reconsider asks the Immigration Court to look at your case a second time, without adding any new evidence, as an opportunity to change their decision in your case. Successful Motions to Reconsider are rare.
Some individuals may be allowed to opt for a voluntary departure, that is leaving the U.S. on your own accord. Leaving under a voluntary departure is a better option than leaving under a deportation or removal order, as a voluntary departure may allow you to return to your home country and properly apply for a visa to return to the U.S. legally. If this option is available to you and all other deportation defenses are not available in your case, then it may be the best option.
Fighting a deportation order is a difficult, and you will need more than a sympathetic story to get favorable results. Our attorneys know the fine points of criminal waivers, noncriminal waivers, prosecutorial discretion, U Visas, I-601A waivers, and more that can help our clients reach a more successful outcome.