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Undocumented Alien: Possible Defenses Against Deportation

For an undocumented alien facing deportation, this predicament is truly daunting. Since the immigration law is too complicated, such an ordeal places an individual in uncertainty. However, keep in mind that there is still hope. If you are currently struggling in this situation, there are possible defenses that may help you remain in the United States.

Asylum and Withholding of Removal

One of the most well-known defenses to deportation is seeking asylum or withholding of removal. To qualify for asylum, an undocumented alien must demonstrate a well-founded fear of persecution based on:

  • Race
  • Religion
  • Nationality
  • Political opinion
  • Membership in a particular social group

Withholding of removal is similar but requires a higher standard of proof – a “clear probability” of persecution.

Cancellation of Removal

Cancellation of removal is available to certain undocumented aliens who have been:

  • Physically present in the United States for a specified period
  • Maintained good moral character
  • Can demonstrate that their removal would result in exceptional and extremely unusual hardship to a qualifying relative who is a U.S. citizen or lawful permanent resident

Adjustment of Status

Undocumented aliens who are eligible for immigrant visas may be able to adjust their status to that of a lawful permanent resident (green card holder) if they have:

  • A qualifying family relationship
  • Employment opportunity

Adjustment of status can provide a defense against deportation, as it offers a pathway to lawful permanent residency.

Special Programs and Relief

There are various special programs and forms of relief available for certain undocumented aliens, such as the following:

  • Deferred Action for Childhood Arrivals (DACA) program for individuals brought to the U.S. as children
  • Temporary Protected Status (TPS) for nationals of designated countries facing temporary crisis conditions
  • U visas for victims of certain crimes who cooperate with law enforcement

Prosecutorial Discretion

Prosecutorial discretion allows immigration authorities to choose whether to initiate or pursue deportation proceedings against an individual. Factors that can influence this discretion include:

  • The person’s length of stay in the U.S.
  • Family ties
  • Employment history
  • Criminal record

Challenging Immigration Court Proceedings

Undocumented aliens have the right to a fair hearing in immigration court. They can challenge factors such as:

  • The legality of their arrest
  • Detention conditions
  • The evidence against them

An experienced immigration attorney can help identify potential legal errors in the proceedings that may lead to the dismissal of deportation charges.

 

Being an undocumented alien facing deportation is certainly a scary situation. But, it’s important to keep in mind that there are several possible defenses. The legal environment in immigration law is highly complicated and susceptible to change. Thus, it makes sense to seek experienced legal guidance to figure out the best defense approach based on unique circumstances.

It’s also worth mentioning that this article does not contain a complete list of possible defenses. Because each case is different, the effectiveness of these defenses varies considerably. Therefore, we recommend that you contact an expert immigration attorney to obtain personalized advice and guidance.

 

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