Deportation Defense

Deportation Defense

Facing deportation is a problem impacting many immigrants. It can be a tedious and humiliating process especially if you have already built a life and a foundation with people here in the United States.

There are several deportation defenses available for individuals depending on their circumstances.  If you think that you or a loved one is on the verge of being deported, or you are attempting to avoid such a circumstance as much as possible, read on this FAQ to help you find answers to the top ten most asked questions about deportation defense.

Once you’ve read through the FAQs, or educated yourself otherwise, The Victoria Law Group is happy to schedule a conversation with you about your options.

Top Ten Deportation Defense Questions

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Top Ten Deportation Defense Questions

If you are in need of a deportation defense or you want to avoid getting deported as much as you can, you should know about the following defenses available for you:

  • You may apply for Permanent Residency or Adjustment of Status. If you are already facing removal proceedings, you should apply for permanent residency or have your status adjusted. A family-based petition such as marriage is often the solution done by individuals facing removal proceedings. You may also try to apply for adjustment of your status based on an approved employee-based petition. The weight of such a petition would be determined by the lawful court.
  • Some individuals often try to renew their Form I-751 Removal of Conditional Residence. If the cause of your removal is a simple failure to timely file the I-751 petition to remove condition on residence, the solution is for you to renew the petition and use it as a defense in front of an Immigration Judge.
  • You may also try applying for a criminal waiver. There are some instances where a permanent resident may be charged with deportability due to a criminal past. If you are under a permanent resident already but you are facing removal proceedings, you may apply and use a criminal waiver as a deportation defense.
  • You may seek and apply for asylum. In certain cases, the best deportation defense is having no other place to go to. If you are facing removal proceedings, you may seek the help of the US government for asylum. Basically, what you are doing is seeking refuge from withholding of removal, or relief under the Convention Against Torture. Once you have been granted an asylum, you may already legally work in the United States, bring your family to the United States for their own protection, and file for lawful permanent residency, or even get naturalized. There are a few conditions that you will need to comply with but once asylum is granted, you are also granted protection by the US government.
  • You may seek for the exercise of discretion. This one may sound simple but it is not. It is often a mistake that people think ‘discretion’ is easier than the other deportation defenses, but it is harder. Not a lot of government prosecutors are willing and able to exercise discretion in matters of immigration and deportation. If you are willing to work for it and give this deportation defense a try, you may try to request a Prosecutorial Discretion in writing with evidence to the Department of Homeland Security.
  • You may apply for a U Visa. If you have been the victim of a crime and you were helpful in the prosecution of the perpetrators of the crime, you may be given a U visa. Through this visa, you are granted a nonimmigrant status and obtain work authorization for up to four years.
  • You may seek a DACA permit. This step is very specific. DACA stands for deferred Action for Certain Childhood Arrivals. It refers to childhood arrivals. To know if you are eligible, you may check your eligibility at the USCIS website or ask around.
  • You may also use the deportation defense of a Temporary Protected Status. The United States allows for individuals from certain countries to seek a Temporary Protected Status (TPS) as long as certain conditions permit. Conditions like the fact that temporarily make a person’s return unsafe, or if its government is unable to sufficiently handle the return of its nationals. This deportation defense would depend on the relations between the United States and the originating country.
  • You may use the Violence Against Women Act as a deportation defense as well. The United States allow for victims of certain crimes that involve domestic violence to apply and seek relief under the Violence Against Women Act.
  • You may file for Cancellation of removal. There are certain cases that allow a non-legal permanent resident to apply for cancellation of removal. The individual can obtain lawful permanent resident status if he or she complies with the requirements set by law. The conditions are physical presence in the United States for 10 years (before any of the removal proceedings began), having a good moral character for at least ten years and this must get proven by specific documents showing the applicant’s character, and that a U.S. citizen or legal permanent resident child, spouse, or parent will suffer extreme and exceptionally unusual hardship if the individual is not allowed to remain in the United States. The deportation must cause such hardship and such must get proven in court.
  • When all else fails, the individual may seek to voluntarily remove himself from the United States. Of course, in extreme cases, voluntarily removing yourself and leaving the United States might be the best course of action for you. If you are deported and removed from the United States, you may end up getting blacklisted and denied entry to the United States your whole life. However, if you voluntarily depart from the United States, you may still re-apply for the US Visa when you come back to your home country. This is the best way for you, in the worst and most extreme case.

Yes, a marriage-based green card often raises red flags that make USCIS question the marriage. If you are facing removal proceedings because of a marriage-based green card or you want to have the right deportation defense, you should know that the following are the red flags that often make USCIS question the validity of the marriage:

  • When you and your partner do not have a shared language, USCIS will question how you communicate your feelings and share a life together.
  • Questions also often rise when there is a vast age difference. People of different ages get married at different stages but marriages with a wide age difference may often cause USCIS to question it if one of the parties also seem to want a green card over the relationship or if one of the partners seem forced to get into the marriage.
  • Differences in religion, social class, and cultural backgrounds may also be a question for USCIS. The government would be curious as to the development of the relationship.
  • When the couple does not live in the same house, it may also raise suspicion for the USCIS. Hence, if you are facing removal proceedings, you must at least live in the same house as your husband or wife.
  • If the United States citizen lacks a job or needs money, it will raise questions if such citizen is suddenly getting married to a non-US citizen and give that person a spousal visa. Is the marriage a sham for him to make some big bucks? The USCIS will definitely weigh in on this question.
  • If the non-US citizen comes from a country where immigration fraud is a normal thing that they do, USCIS will put the relationship into question.

At the end of the day, if the marriage is legitimate or if the relationship already pre-exists long before any removal or deportation proceedings, you should have no worries showing off that your relationship is legitimate. However, if you do decide to go down the path of a marriage-based deportation defense, the best thing you can do for yourself is to hire a lawyer who can really help you with your concern.

Seeking asylum in the United States is another possible deportation defense. Whenever an individual is said to be seeking asylum, he is asking for political protection from the United States. He is seeking such protection because it is impossible for him to return to his own country. An asylum-seeker must prove that he would face some persecution in his home country due to different factors. Political opinions, nationality, religion, race, or membership in a particular social group are some of the factors that an individual must prove whenever he is seeking asylum in the United States.


Seeking asylum is considered as a deportation defense because you are already in the United States and you are seeking help. On the other hand, this concept is different from when you are applying for refuge because individuals seeking refuge are usually not yet in the United States.

Currently, the Department of Homeland Security (DHS) has a backlogged system. It can take years before the process is done. It is a thorough process involving a lot of paperwork and interviews. The applicant’s past criminal convictions, background information, and family background will also come into consideration. If you do not know how to speak in English, you must provide your own interpreter and legal representation at no cost to the United States government. It is only after the interview that the case will be checked for eligibility. Once eligible, the case will be forwarded to an immigration court for assessment by a judge.

Once you have been granted asylum status, keep in mind that you must wait for 150 days to apply for employment during the pendency of your request. If your asylum request is granted before the lapse of 150 days, you are already qualified to work. You may also petition to bring your family to the United States. After five years, you may already apply for citizenship.

If you want to use a U Visa as a deportation defense, you may also do so. A U Visa is a special kind of visa. It is given to victims of certain crimes. Crimes like sexual assault and domestic violence crimes fall under this definition. If you have been a victim of such crimes and you cooperated with law enforcement and show that you suffered because of the crime, you can be granted a U visa. However, the grant of a U Visa is really dependent on a case by case basis. It is a very strict visa application and it also does not guarantee that you will not be removed from the United States while your application is pending. This is considered as an option by many immigration lawyers if the other options are no longer applicable. You must show that you are a model citizen and that it is still in the best interest of the United States to keep you in the country. It is a long and tedious process but it is still an available option.

A public charge can affect your deportation case depending on the immigration status that you are applying for. Keep in mind that public charge ground of inadmissibility is dependent on a lot of factors. However, the most commonly affected immigration status application is the family-based category. In fact, there is no need for you to have received public benefits in order to be subject to the public charge inadmissibility. In a way, you must keep in mind that your economic status is the best way to prove that you are not subject to the public charge inadmissibility. In relation to a deportation, a public charge weighs negatively on you and your case.

An H-1B working visa is a specialized kind of visa that allows United States companies to employ workers under a special visa. This applies for specialty occupations that need technical expertise in specialized fields. If you plan to work for a US company that needs specialized skills such as finance, accounting, IT, engineering, science, and mathematics, among others, you may be eligible for this kind of visa.

Unfortunately, there is already a visa cap and it is highly unlikely that you will get a successful H-1B visa petition. The petitions also usually last for up to 6 years so it is easier to apply for a non-immigrant visa than an H-1B visa. Because of the long process, employers are forced to apply for L-1B for specialized workers, L-1A for managers and executives, E-2 Treaty Investor visa, E-1 Treaty Trader visa, E-3 for Australians, to get the workforce they need.

A legal permanent resident or a lawful permanent resident are the green card holders. According to the DHS website, they are the non-citizens who are legally allowed to live permanently in the United States. They do not have restrictions and enjoy all of the benefits that come with being a United States citizen. There are a lot of categories for one to be considered as a legal permanent resident but the most common way to get the status is for the purpose of family reunification, economic and humanitarian immigrants, as well as immigrants from countries with relatively low levels of immigration to the United States.

DACA or the Deferred Action for Childhood Arrivals is a very specific permit or immigration status. To be eligible for the DACA program, the National Immigration Law Center provides that the following are the eligibility requirements, such as:

  • That the applicant have come to the United States before his sixteenth birthday;
  • That the applicant has lived continuously in the United States since June 15. 2017;
  • That the applicant have been present in the United States on June 15, 2012 and every day from then on since August 15, 2012;
  • That the applicant does not have a lawful immigration status on June 15, 2012. To meet this requirement, (1) you must have entered the U.S. without papers before June 15, 2012, or, if you entered lawfully, your lawful immigration status must have expired before June 15, 2012; and (2) you must not have a lawful immigration status at the time you apply for DACA;
  • That the applicant must be at least 15 years old at the time you apply for DACA. If you are currently in deportation proceedings, have a voluntary departure order, or have a deportation order, and are not in immigration detention, you may apply for DACA even if you are not yet 15 years old;
  • That the applicant has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, be an honorably discharged veteran of the Coast Guard or U.S. armed forces, or “be in school” on the date you submit your DACA application;
  • That the applicant has not been convicted of a felony offense. A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year;
  • That the applicant has not been convicted of a significant misdemeanor offense or three or more misdemeanor offenses. See below for more information about offenses that may disqualify you; and
  • That the applicant has not posed a threat to national security or public safety. DHS has not defined precisely what these terms mean but has indicated that they include gang membership, participation in criminal activities, or participation in activities that threaten the U.S.


*Information from the National Immigration Law Center.

A Special Immigrant Juvenile Status (SIJS) is an immigration status given to children who are in the United States and who need the protection of a juvenile court. The child must have been neglected by a parent, abandoned, or abused. Once he is classified under Special Immigrant Juvenile status, the child will then qualify for the green card.

As a last resort to prevent deportation, you may choose to voluntarily leave the United States. One of the more severe effects of deportation is the permanent ban of the individual from coming into the United States. If you voluntarily leave the United States, however, you may still enjoy the privilege of applying for a visa in the future.

However, this process still requires compliance with specific requirements. You have to request for voluntary departure at the beginning of the removal or deportation proceeding. It should not be done before the conclusion of the proceedings. You can request for voluntary departure from the DHS or the judge depending on the stage of the proceeding, but again, you should never do this when you are near the conclusion and your removal from the country is imminent.

Other than the time of your application, make sure that you have comply with procedural requirements as well such as withdrawal of all other pending applications for relief, admission that the DHS allegations for your removal are true, and that you waive your right to appeal. You must also show proof that you have been present in the United States for at least a year, that you can produce the required travel documents, that you have the means to depart from the country, that you are a person of good moral character, and that you must post a bond.

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