How to Legally Stop Deportation and Removal from the US: Key Strategies You Need to Know

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Picture of Shawn Sedaghat, Esq.

Shawn Sedaghat, Esq.

The Shawn S. Sedaghat Law Firm

Deportation. It’s a scary word for anyone facing the possibility of being forced to leave the United States. But here’s the good news—you don’t have to go through this alone. There are legal strategies that can help you stop deportation and removal from the U.S., and with the right knowledge and assistance from an experienced immigration attorney, you might be able to stay here legally. So let’s dive into the steps and legal options available to you or your loved one.

 

What Is Deportation and Removal?

First things first—what exactly are deportation and removal? In immigration law, they are essentially the same thing. When the U.S. government decides that a non-citizen should leave the country, it initiates removal proceedings. This could be due to several reasons: criminal activity, overstaying a visa, entering the country unlawfully, or other violations of immigration laws. Once the process begins, it is overseen by an immigration judge in immigration court. If things don’t go your way, a deportation order could be issued, and you may be forced to leave the U.S.

 

But here’s the key takeaway: deportation isn’t the final word. There are strategies to challenge or delay this process, and this article will guide you through them step by step.

Common Reasons for Deportation

Before we explore the ways to stop deportation, let’s break down the main reasons someone might face deportation proceedings:

 

  • Criminal offenses: Committing certain crimes, especially aggravated felonies or crimes involving moral turpitude, can lead to deportation.
  • Visa violations: Staying beyond the expiration of your visa or working without authorization are common immigration violations that can trigger removal.
  • Immigration fraud: Entering the country using false information or engaging in fraudulent marriages can lead to removal.
  • Unlawful entry: Entering the U.S. without proper documentation, or re-entering after being previously deported, is grounds for deportation.
  • Failure to maintain lawful status: Lawful permanent residents (green card holders) may lose their status if they commit certain crimes or leave the country for extended periods without proper reentry documentation.

Knowing why you’re facing deportation is crucial because it helps determine which legal defense you can use to stop deportation.

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Key Strategies to Stop Deportation and Removal

When facing deportation proceedings, it’s essential to understand the different legal defenses available. These strategies can help you challenge or delay your removal, and some may even allow you to stay in the U.S. permanently.

 

1. Cancellation of Removal

Cancellation of removal is one of the most effective defenses available in removal proceedings. It allows the immigration judge to cancel the deportation order if certain conditions are met. There are two types of cancellation: one for lawful permanent residents and one for non-permanent residents.

  • For lawful permanent residents (LPRs): You must have held LPR status for at least five years, have continuously lived in the U.S. for seven years, and not have been convicted of an aggravated felony.
  • For non-permanent residents: You must have been physically present in the U.S. for at least ten years, have demonstrated good moral character, and show that your deportation would cause “exceptional and extremely unusual hardship” to a U.S. citizen or LPR family member (spouse, child, or parent).

Cancellation of removal is a lifeline, but it is granted to a limited number of applicants each year. To maximize your chances, it’s crucial to work with an experienced immigration attorney who knows how to present your case effectively.

 

2. Adjustment of Status

If you have a close family member who is a U.S. citizen or lawful permanent resident, you may be able to adjust your status during deportation proceedings. This means you could apply for a green card, allowing you to stay in the U.S. permanently. The process requires that your family member file a petition for you, and once approved, you can apply for an adjustment of status.

 

An adjustment of status is often a complex process, especially if you’re already in removal proceedings, so it’s best to have an immigration lawyer guide you through the necessary paperwork and legal steps.

 

3. Asylum or Withholding of Removal

Another way to stop deportation is by applying for asylum or withholding of removal. If you fear persecution in your home country due to your race, religion, nationality, political opinion, or membership in a particular social group, you may be eligible for asylum. If granted, you will be allowed to remain in the U.S. and may eventually apply for a green card.

 

  • Asylum: This is a discretionary form of relief, meaning the judge has the option to approve or deny your application. You must apply within one year of arriving in the U.S., though exceptions exist for certain circumstances.
  • Withholding of removal: This is similar to asylum but has stricter requirements. However, if granted, it prevents deportation but does not lead to a green card.

Both forms of relief require strong evidence and legal arguments, so working with an experienced immigration attorney is key to improving your chances of success.

 

4. Prosecutorial Discretion

Sometimes, the government can decide not to pursue deportation, even if you are in removal proceedings. This is known as prosecutorial discretion. Immigration officials have the power to close or pause your case, allowing you to remain in the U.S. while avoiding deportation.

 

Factors that might lead to prosecutorial discretion include:

 

  • Long-term residence in the U.S.
  • Strong family ties to U.S. citizens or lawful permanent residents.
  • Lack of criminal history.
  • Positive contributions to your community.

Your immigration lawyer can help you request prosecutorial discretion, explaining to immigration officials why you deserve to stay in the U.S.

 

5. Waivers of Inadmissibility or Deportability

In some cases, individuals facing deportation due to criminal activity or immigration violations can apply for a waiver. These waivers allow you to stay in the U.S. despite being found inadmissible or deportable. For example, you can apply for:

 

  • A 212(h) waiver if you have committed certain crimes but can show that your deportation would cause hardship to a U.S. citizen or lawful permanent resident family member.
  • An I-601 waiver if you are facing deportation due to fraud or misrepresentation.

Each waiver has specific eligibility criteria, and your immigration attorney will help you determine which one applies to your case.

 

6. Voluntary Departure

If all else fails, you may choose voluntary departure. While this is not a defense to deportation, it does allow you to leave the U.S. on your own terms rather than being forcibly removed. This can prevent you from facing the long-term consequences of a deportation order, such as being barred from re-entering the U.S. for several years.

 

By choosing voluntary departure, you also have more time to make arrangements for your departure and may be eligible to reapply for entry into the U.S. later.

 

7. Appealing a Deportation Order

If the immigration judge orders your deportation, don’t lose hope—you have the right to appeal the decision to the Board of Immigration Appeals (BIA). During the appeal process, your immigration lawyer can argue that the judge made a mistake in the law or facts of your case. Appeals must be filed within a short timeframe (usually 30 days), so it’s important to act quickly.

 

8. Stay of Removal

A stay of removal is a temporary halt to deportation, which can give you time to resolve legal issues or appeal your case. To apply for a stay, your immigration attorney will need to file a request with the immigration court or another relevant agency. If granted, you can remain in the U.S. while your case is under review.

How USCIS Defines Good Moral Character

Good Moral Character: Why It Matters

To be eligible for many forms of relief from deportation, such as cancellation of removal or adjustment of status, you must show that you have good moral character. This means avoiding serious crimes and demonstrating positive behavior during your time in the U.S.

 

Factors that support good moral character include:

  • Regular employment.
  • Positive contributions to your community.
  • No criminal convictions.
  • Affidavits from employers or neighbors attesting to your good behavior.

If you have a criminal record, don’t panic—there may still be ways to prove good moral character, especially if you have shown evidence of rehabilitation. Consult an experienced immigration attorney to explore your options.

 

Conclusion

Facing deportation can be daunting, but remember, you don’t have to face it alone. With the right legal strategy and the help of an experienced immigration lawyer, you can fight to stop deportation and possibly remain in the U.S. Whether through cancellation of removal, asylum, adjustment of status, or an appeal, there are numerous options available to you.

 

The most important step you can take is to seek legal advice immediately. Time is of the essence in immigration cases, and delays can limit your options. Consult an experienced immigration attorney today to understand your rights and start building your case throughout the deportation process.

FAQs

  1. Can I stop deportation if I have a criminal record?

    Yes, it is possible to stop deportation even if you have a criminal record, but it depends on the type of offense. Certain crimes, like aggravated felonies, can make it more difficult to stop deportation. However, waivers or other forms of relief may still be available. Consult an immigration attorney who is an expert in immigration law for guidance.

  2. What is prosecutorial discretion, and how can it help my case?

    Prosecutorial discretion allows immigration authorities to decide not to pursue deportation in certain cases. Factors like strong family ties, long-term residence, and lack of a criminal record can work in your favor. Talk to an immigration lawyer with expertise on immigration law and other immigration status-related cases to see if this option is available to you.

  3. How long do I have to appeal a deportation order?

    You typically have 30 days to file an appeal with the Board of Immigration Appeals (BIA) after receiving a deportation order. It’s important to act quickly and consult an immigration attorney to begin the process.

  4. What does “good moral character” mean in deportation cases?

    Good moral character refers to your behavior and actions over a specific period. Demonstrating consistent employment, positive community involvement, and a lack of criminal convictions are examples of maintaining good moral character in deportation proceedings and preventing any form of status cancellation.

  5. Can I apply for asylum during removal proceedings?

    Yes, if you fear persecution in your home country based on your race, religion, nationality, political opinion, or membership in a particular social group, you may apply for asylum. An experienced immigration attorney can help guide you through the application process during removal proceedings.
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