Defenses to Deportation for Foreign Nationals Without Legal Status in the U.S.

If you do not have legal status in the U.S., and you are placed in removal proceedings, you may be able to raise certain arguments for remaining in this country. You should retain a lawyer to help you make these arguments as persuasively as possible. The first line of defense may consist of arguing that you are not actually removable, which involves challenging the charge of removability brought by the government. If you have no real argument here, or if this argument fails, you still can argue that you should not be removed from the U.S. because you qualify for one or more forms of immigration relief.

At your first appearance in immigration court, you likely will need to decide whether you will contest the charge of removability. Even if you suspect that you may be removable, which is usually true for an undocumented immigrant, you may want to contest the charge so that the government is forced to produce evidence supporting the charge. In some cases, the government will bring a charge of removability based on a reason other than a foreign national’s undocumented status. If you can defeat the charge, or if the government does not have enough support to prove the charge, the immigration judge can end the proceedings. However, you should not lie to the judge, which can defeat your eligibility for many types of immigration relief. This also will undermine your credibility during the rest of the proceedings, since the same judge will review the entire case.

Common Forms of Immigration Relief

In the majority of cases involving undocumented immigrants, the government will succeed in showing that the immigrant is removable. The judge will focus on determining whether the foreign national has a defense to removal. They will describe the different options that may be available to the foreign national, although this discussion may be less thorough than the advice that an attorney can provide. You should make sure to ask the judge about your options if you do not have an attorney. This will signal to the judge that you are relying on them to treat you fairly and respect your rights. You will need to describe your situation accurately to the judge so that they can assess the scope of your options.

Some forms of immigration relief are based on a risk that the foreign national will be harmed if they return to their home country. If they have a credible fear of persecution, or if they have suffered from past persecution, asylum may be a viable option. Withholding of removal is another form of immigration relief that is similar to asylum. It involves showing that it is more likely than not that you would be persecuted in your home country. This is a higher standard to meet, and withholding does not offer the same benefits as asylum, such as getting a green card. In extreme situations, a foreign national may be able to get relief under the Convention Against Torture if they can show that it is more likely than not that the government in their home country would torture them, or that they would be tortured by some group from which the government cannot protect them. Benefits under CAT are similar to benefits based on withholding of removal.

Many other foreign nationals pursue a form of immigration relief that is known as cancellation of removal. Cancellation of removal without a green card requires showing that you have stayed in the U.S. for 10 years and that your removal would result in an exceptional hardship to a spouse, parent, or child who is a U.S. citizen or a green card holder. Another type of cancellation of removal may be available under the Violence Against Women Act (VAWA) for people who have been subjected to domestic abuse, if they meet other requirements.

Less Common Options

In rare cases, an undocumented immigrant will be able to pursue adjustment of status. This is usually not available because one of the requirements for adjustment of status consists of having legally entered the U.S. You can ask an attorney about whether an exception to this requirement may apply in your situation.

You can explore the possibility of discretionary forms of relief if you are not eligible for any of the other options. One type of discretionary relief is known as prosecutorial discretion. This means that the government agrees to refrain from removing you, even though you are technically removable. It is rarely offered and should be pursued only as a last resort. People who stay in the U.S. through prosecutorial discretion receive very limited benefits but may be able to work. You probably cannot get prosecutorial discretion if you have a criminal record.

Deferred action is another form of immigration relief. This simply means that the government will not currently take any action in your case. You will not be removed, but you also will not receive legal status in the U.S. Deferred action is best known through the Deferred Action for Childhood Arrivals (DACA) program.

Voluntary Departure

While it is not a full defense to removal, voluntary departure allows you to avoid the negative consequences of an order of removal. Under voluntary departure, a foreign national agrees to leave the U.S. in exchange for not being subject to bars on returning to the U.S.

Last reviewed October 2024