Common Defences Against Deportation

Table Of Contents

What Are Common Defences Against Deportation?

Common defences against deportation involve legal strategies to prevent an individual's removal from the country. These defences often depend on the specific circumstances of the individual's case. An individual's immigration history dictates the available defence options. An individual's criminal record also influences the defence strategies. An individual's family ties within the country play a significant role. The length of an individual's residence in the country also strengthens certain defences.
The immigration system provides several avenues for relief from deportation. These avenues include cancellation of removal for certain non-permanent residents. Cancellation of removal for permanent residents is another option. Asylum claims offer protection to individuals fearing persecution. Withholding of removal provides similar protection. The Convention Against Torture offers protection against torture. Waivers of inadmissibility also present a defence. Voluntary departure allows an individual to leave the country without a formal deportation order.

How Does Asylum Offer Deportation Defence?

Asylum offers deportation defence to individuals who demonstrate a well-founded fear of persecution in their home country. The persecution must relate to race, religion, nationality, political opinion, or membership in a particular social group. An individual must file an asylum application within one year of arrival in the country. Exceptions to the one-year filing deadline exist for changed circumstances or extraordinary circumstances. An asylum claim provides protection from deportation while the claim is pending.
An individual granted asylum receives protection from deportation. The individual also receives authorisation to work in the country. The individual can apply for a green card one year after receiving asylum status. Family members of the asylum grantee also receive derivative asylum status. The asylum process involves an interview with an asylum officer. A hearing before an immigration judge follows if the asylum officer does not grant asylum.

How Does Cancellation Of Removal Defend Against Deportation?

Cancellation of removal defends against deportation. Cancellation of removal offers a defence for certain eligible individuals. Two types of cancellation of removal exist. One type applies to permanent residents. Another type applies to non-permanent residents. Each type has distinct eligibility requirements. An individual meets all criteria. The individual qualifies for cancellation of removal. The immigration judge has discretion. The judge grants cancellation of removal.
Cancellation of removal for permanent residents requires lawful permanent resident status for five years. The permanent resident resides continuously in the country for seven years after admission. The permanent resident does not commit certain serious crimes. Cancellation of removal for non-permanent residents requires physical presence in the country for ten years. The non-permanent resident demonstrates good moral character during that period. The non-permanent resident shows exceptional and extremely unusual hardship to a qualifying relative.

How Do Waivers of Inadmissibility Function as a Defence?

Waivers of inadmissibility function as a defence by excusing certain grounds of inadmissibility that would otherwise lead to deportation. Grounds of inadmissibility include criminal convictions, misrepresentations, and unlawful presence. An individual must typically show extreme hardship to a qualifying relative to obtain a waiver. Qualifying relatives include a US citizen spouse, parent, or child. The waiver process is complex and requires specific documentation.
Various types of waivers exist for different grounds of inadmissibility. A waiver for unlawful presence allows an individual to adjust status or re-enter the country. A waiver for criminal grounds addresses past criminal activity. A waiver for misrepresentation addresses past false statements to immigration officials. The immigration judge or immigration officer considers all positive and negative factors when deciding on a waiver application.

Can Voluntary Departure Prevent Deportation?

Voluntary departure can prevent deportation by allowing an individual to leave the country voluntarily. An individual who receives voluntary departure avoids a formal deportation order. A formal deportation order carries severe consequences for future immigration attempts. An individual granted voluntary departure must leave the country within a specified timeframe. The timeframe is usually 60 to 120 days.
An individual who fails to depart voluntarily by the deadline faces significant penalties. These penalties include a ten-year bar from re-entering the country. The individual also becomes subject to a final order of deportation. Voluntary departure requires the individual to admit deportability. The individual must also waive certain rights, including the right to appeal. The immigration judge decides whether to grant voluntary departure based on various factors.

What Role Does Prosecutorial Discretion Play in Deportation Cases?

What role does prosecutorial discretion play in deportation cases? Prosecutorial discretion allows immigration authorities to decide whether to pursue deportation. Immigration authorities defer action on a deportation case. Immigration authorities dismiss a deportation case entirely. Prosecutorial discretion offers a potential avenue for relief. This applies even when other formal defences are unavailable. Immigration authorities exercise this discretion on a case-by-case basis.
Immigration authorities consider various factors when exercising prosecutorial discretion. These factors include an individual's ties to the country. An individual's criminal history also influences the decision. An individual's length of residence in the country is a factor. Humanitarian concerns also play a role. Prosecutorial discretion does not grant legal status but provides temporary relief from the threat of deportation.

FAQS

What is a "well-founded fear of persecution"?

A "well-founded fear of persecution" means an individual genuinely fears harm in the individual's home country. The individual also has objective reasons supporting the individual's fear. The individual's fear relates to specific protected grounds.

How long does the asylum process usually take?

How long does the asylum process usually take? The asylum process usually takes months or years. Case complexity determines processing time. Court backlogs determine processing time. Some cases conclude within months. Other cases take several years for a final decision.

Can individuals with criminal records still apply for cancellation of removal?

Individuals with criminal records still apply for cancellation of removal. The type of crime determines eligibility. The severity of the crime determines eligibility. Certain serious crimes bar an individual from this relief.

What are the consequences of overstaying a voluntary departure order?

Overstaying a voluntary departure order leads to severe consequences. The individual also receives a formal deportation order.

Does prosecutorial discretion grant permanent legal status?

Prosecutorial discretion does not grant permanent legal status. Prosecutorial discretion provides temporary relief from deportation. Prosecutorial discretion allows an individual to remain in the country for a period.

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