Deportation Defense: Options for Complicated Cases
05 November 2014Author: Deportation Attorney Alena Shautsova
Removal or deportation proceeding is the name for administrative process during which an Immigration judge decides if a non-citizen should be sent back to his/her home country. To stay in the US, a non-citizen needs to provide a defense to the removal.
Preparing a defense from deportation starts with reviewing of person’s full immigration history, including immigration history of person’s family members. It also includes an analysis of procedural rights of the person being charged with removal: was he/she given a due notice? If the person was arrested was the arrest lawful? Did the government present correct charges of removability/inadmissibility?
A defense can come in different forms but the final goal of any application would be either to postpone the determination of the removability if there is no clear relief from removal at this time; or to file an application that would allow the non-citizen to legally stay in the US.
In every case of removal or deportation, the non-citizen should try to secure a representation. It is so because immigration laws and procedures are complicated; the government is represented by a professional and the judge cannot defend the non-citizen as he/she has to remain unbiased.
Some cases, however, are more complicated than others. These are the cases that include aggravated felony charges or charges of removability based on criminal convictions; prior orders of deportation/removal; allegations of asylum fraud, claims to US citizenship and misrepresentation. Such cases require careful planning and strategic approach. In addition to common relief to removal such as adjustment of status; asylum; cancellation of removal, a person might have to apply for a waiver and/or argue that the charges mischaracterized the person’s actions. For example, when a person is accused of being an illegal voter, a defense of an honest mistake and/or government actions that caused the mistake might be available. In a case of allegations of misrepresentation , a thorough legal analysis of person’s actions must be presented.
The use of witnesses and expert testimony can become crucial in a complex case. This type of evidence is especially helpful in asylum cases and cases where an applicant has to demonstrate hardship.
Sometimes, a person can qualify for less common forms of relief from removal: Cuban adjustment; VAWA cancellation or removal; re-adjustment of status; U visa; or grandfathering based on derivative status. Sometimes, it is wise to ask the judge to administratively close the file, if the person in removal proceedings can expect that his/her situation would change the way he/she will become eligible for some relief from removal.
If the person’s goal is to remain in the US, he/she should consult with an immigration attorney or two as often, early mistakes (even responding to the initial charges!) may lead to drastic consequences.