The Most Common Immigration Removal Defense Strategies

If you’re like many people facing removal proceedings (deportation), you’re probably more than a little concerned. In fact, you may be scared, confused and in a state of panic – and that’s all understandable. Removal from the United States has serious consequences that may include being forced from your home and barred from returning to the country, even if you have a family, a job and a life here.

Fortunately, there are some ways people can fight deportation. Because the stakes are so high, many people choose to work with a New York immigration attorney who understands removal proceedings and the best possible defenses to deportation. Your lawyer can represent you, show an immigration judge your side of the story and help you fight deportation every step of the way.

With that in mind – and knowing that working with a lawyer may give you the best chance at a favorable outcome – this guide covers the most common immigration removal defense strategies. Your attorney may choose to use one (or more) of these strategies as a means to help you remain in the United States and keep a deportation off your record.

The Most Common Immigration Removal Defense Strategies

These are the most common immigration removal defense strategies:

1. Criminal waivers
2. Noncriminal waivers
3. Applying for permanent residency or adjustment of status
4. Form I-751 renewal
5. U visas
6. DACA
7. Temporary protected status and NACARA
8. VAWA
9. The 10-year rule
10. Asylum or protection under the Convention Against Torture
11. Motion to terminate or motion to suppress
12. Voluntary departure
13. Prosecutorial discretion

Here’s a closer look at each.

Immigration Removal Defense Strategy #1: Criminal Waivers

If you have a criminal record, it may work against you in removal proceedings. However, some criminal offenses may be eligible for a waiver, which means they won’t count against you during the deportation process. Criminal waivers include 212(c), 212(h), EOIR-42A or EOIR-42B.

• A 212(c) waiver is available to lawful permanent residents who pleaded guilty to a crime before April 1, 1997. Though the original section of the Immigration and Nationality Act (INA) that covered this waiver has since been repealed by Congress, the U.S. Supreme Court has ruled that the repeal doesn’t apply to permanent residents who pleaded guilty to a crime before that date; additionally, the Board of Immigration Appeals says that this type of deportation relief is available to lawful permanent residents who are otherwise eligible.
• A 212(h) waiver is available to lawful permanent residents who want to adjust their status but can’t due to criminal history. This waiver lets immigration authorities waive many grounds of inadmissibility – that is, things that would make you inadmissible to the U.S. and therefore unable to adjust your status. These include crimes involving moral turpitude, convictions for two or more offenses carrying an aggregated sentence of 5 years or more in prison, engaging in prostitution (or procuring prostitutes), involvement in serious criminal activity if you received immunity from prosecution, and a single offense of marijuana possession (as long as you possessed 30 grams or less).
• An EOIR-42A waiver is available to permanent residents who have been permanent residents for five or more years, have been in the U.S. for seven or more years under being lawfully admitted and have never been convicted of an aggravated felony.
• An EOIR-42B waiver is available to nonpermanent residents if they can establish that they’ve been continuously present in the U.S. for ten or more years, and that they’ve been a person of good moral character during that period. They may not have been convicted of certain crimes listed in the INA, and that their removal would result in “exceptional and extremely unusual hardship” to remaining family members who ware U.S. citizens or lawful permanent residents. This waiver is also available to those who have been battered or subjected to extreme cruelty by a family member who’s a U.S. citizen or lawful permanent resident.

Immigration Removal Defense Strategy #2: Noncriminal Waivers

Even if you don’t have a criminal record, there may be other reasons why you’re ineligible for a green card or other relief from removal. These are called noncriminal grounds of inadmissibility, and they can include things like lying on your application, being unable to support yourself financially, or having a communicable disease. Like criminal grounds of inadmissibility, some of these may be eligible for a waiver.

The most common noncriminal waivers are the I-601A provisional waiver, the I-601 waiver, and the I-602 provisional waiver.

• The I-601A provisional waiver is available to those who are inadmissible due to unlawful presence in the U.S. (being in the U.S. without authorization). To be eligible, you must have an immediate family member who’s a U.S. citizen or lawful permanent resident, and you must demonstrate that your spouse or parent would experience extreme hardship if you were not allowed to remain in the U.S.
• The I-601 waiver is available to those who are inadmissible due to many different grounds, including unlawful presence, criminal history, and health-related issues. To be eligible, you must demonstrate that your U.S. citizen or lawful permanent spouse or parent would experience extreme hardship if you were not allowed to remain in the U.S. This is a lengthy form that lets you ask to waive only some grounds of inadmissibility (such as being involved in a crime of moral turpitude, a controlled substance violation relating to simple possession of 30 grams or less of marijuana, or being convicted of two or more offenses for which your total sentence added up to five years or more in prison). There are a number of other things that may make you inadmissible, such as having a communicable disease of health significance or failing to get the appropriate vaccinations, which this waiver may also address.
• The I-602 waiver is available to some refugees who have been found inadmissible, such as those with felony convictions or certain health conditions. You may be able to use this waiver to show humanitarian reasons, family unity or national interest.

As with any other waiver, there’s no guarantee that you’ll get it – you may still be deported from the U.S. when you use one of these waivers.

Related: Fraud and willful misrepresentation in immigration

Immigration Removal Defense Strategy #3: Applying for Permanent Residency or Adjustment of Status

You may be able to avoid deportation by applying for permanent residency or adjustment of status. To do this, you must meet certain requirements, such as being eligible for an immigrant visa, having an employer sponsor you, or having a close family member who’s a U.S. citizen or lawful permanent resident sponsor you.

You’ll also need to show that you’re admissible to the U.S., which means that you don’t have any criminal convictions or other reasons why you might be ineligible for a green card. If you do have a criminal conviction, you may still be able to get a green card if you qualify for a waiver.

Immigration Removal Defense Strategy #4: Form I-751 Renewal

Some people are able to avoid deportation by renewing their Form I-751, which is the form that’s used to apply for a green card. To be eligible, you must have been granted a conditional green card based on your marriage to a U.S. citizen or lawful permanent resident, and you must still be married to (and living with) that same spouse.

You’ll need to submit evidence that you’re still married, such as joint bank accounts, tax returns, or birth certificates for any children you have together. You’ll also need to show that your marriage is genuine and not just a way to get a green card.

If your spouse has died or you’ve divorced since you got your conditional green card, you may still be able to renew your green card by showing that the marriage was genuine.

Immigration Removal Defense Strategy #5: U Visas

If you’ve been the victim of certain crimes, such as domestic violence or human trafficking, you may be eligible for a U visa. To get a U visa, you must have reported the crime to the police and be willing to cooperate with the investigation or prosecution of the crime.

You’ll need to submit evidence of the crime, such as a police report or court documents, and you’ll need to show that you have suffered physical or mental abuse as a result of the crime.

If you’re granted a U visa, it will allow you to live and work in the U.S. for up to four years. After that, you may be able to apply for a green card.

Related: Can an undocumented immigrant get legal status in the U.S.?

Immigration Removal Defense Strategy #6: DACA

If you were brought to the U.S. as a child, you may be eligible for DACA (Deferred Action for Childhood Arrivals). To be eligible, you must have arrived in the U.S. before your 16th birthday and you must have been under 31 years old as of June 15, 2012.

You’ll also need to show that you’re currently in school, have graduated from high school or have been honorably discharged from the military, and that you haven’t been convicted of a felony or significant misdemeanor.

If you’re granted DACA, it will allow you to live and work in the U.S. for two years, and it may be renewed for an additional two years. There’s currently no path to a green card through DACA, but it may help you avoid deportation.

Related: The step-by-step guide to removing conditions from a green card

Immigration Removal Defense Strategy #7: Temporary Protected Status and NACARA

Some people may be able to avoid deportation by asking for temporary protected status (TPS) or NACARA. If you’re from a country that’s been designated as unsafe or unstable, you may be eligible for TPS. To be eligible, you must have been in the U.S. when the country was designated for TPS and you must meet certain other requirements.

If you’re from a country that’s been designated as a “safe haven” for refugees, you may be eligible for NACARA. To be eligible, you must have entered the U.S. before a certain date and you must meet certain other requirements.

If you’re granted TPS or NACARA, you may live and work in the U.S. for a specific period of time. After that, you may be able to apply for a green card.

Immigration Removal Defense Strategy #8: VAWA

If you’re the victim of domestic violence, you may be able to get a green card through the Violence Against Women Act (VAWA) – even if you’re currently in removal proceedings. To be eligible, you must be married to (or have been married to) a U.S. citizen or lawful permanent resident, and you must have suffered abuse at the hands of your spouse. You’ll also need to show that you meet certain other requirements.

If you’re granted a green card through VAWA, it will be valid for 10 years. After that, you may be able to apply for a permanent green card.

Immigration Removal Defense Strategy #9: The 10-Year Rule

If you’ve been in the U.S. for more than 10 years, you may be eligible to have your removal proceedings cancelled. To be eligible, you must show that you’ve been in the U.S. for more than 10 years, that you haven’t been convicted of certain crimes and that you meet certain other requirements.

If your removal proceedings are cancelled, you may be able to apply for a green card.

Related: Everything you need to know about cancellation of removal

Immigration Removal Defense Strategy #10: Asylum or Protection Under the Convention Against Torture

Some people are able to avoid deportation by getting asylum or protection under the Convention Against Torture. You may be eligible for asylum in the United States, which allows you to remain in the country, because you have a credible fear of persecution in your home country based on one or more of the following factors:

1. Your race
2. Your religion
3. Your nationality
4. Your membership in a particular social group
5. Your political opinion

To qualify for asylum, which can help you remain in the U.S. and under the U.S.’s protection, you must show that you have a credible fear or persecution for one of the above-mentioned reasons or that you have already been persecuted for one of these reasons in the past. Your NY immigration attorney can help you determine whether asylum is a viable option to help you avoid deportation.

Immigration Removal Defense Strategy #11: Motion to Terminate or Motion to Suppress

If you believe that the evidence against you is false or that your rights were violated, you may be able to have your case dismissed by filing a motion to terminate or a motion to suppress. To be successful, you’ll need to show that the evidence against you is false or that your rights were violated. Your attorney will know how to proceed in this situation. If your case is dismissed, you may be able to apply for a green card.

Immigration Removal Defense Strategy #12: Voluntary Departure

You can avoid forced removal from the country by volunteering to leave on your own. Voluntary departure is typically only an option if you haven’t been convicted of a crime and if you meet certain other requirements.

If you’re granted voluntary departure, you’ll have a specific amount of time to leave the country. If you don’t leave by the deadline, you may be subject to forced removal.

Related: Can you get a green card if you have a criminal history?

Immigration Removal Defense Strategy #13: Prosecutorial Discretion

The government has the discretion to decide whether or not to pursue removal proceedings against you. If the government decides not to pursue your case, you may be able to apply for a green card.

There are many factors that the government may consider when exercising prosecutorial discretion, including but not limited to your family ties in the U.S., your criminal history, your employment history and your ties to your home country.

If you believe that you meet the requirements for prosecutorial discretion, you should speak to an attorney. An attorney can help you present your case in the best light possible and increase your chances of having your case closed.

Do You Need to Talk to an Immigration Attorney About Immigration Removal Defense Strategies?

If you need to talk to an immigration attorney, we may be able to help you. Call our office at 914-481-8822 to schedule a consultation with an experienced, knowledgeable immigration attorney who can answer your questions and give you the legal advice you need.