Legal Defenses to Deportation

This section is meant only to flag factors which may be able to stop a deportation.  The laws in each of these areas are very complex.  Contact an attorney to find out more.   

1. Citizenship:  U.S. citizens cannot be deported.  Citizenship law is complicated, but if any of your parents or grandparents are/were U.S. citizens, there is a chance that you are a citizen.  Notify the Immigration Judge and consult with an attorney.

You are eligible to apply for naturalization if you have had your green card for five years or more (or for three years or more if you are married to a U.S. citizen).  Although most criminal convictions prevent you from being eligible for U.S. citizenship, you may be able to apply for naturalization and ask the Immigration Judge to stop the case to remove you, if you have maintained “good moral character” for the past five years.

2. Cancellation of Removal: You may be eligible for cancellation of removal if:

• you have been a permanent resident  (had a green card) for at least 5 years, AND
• you have lived in the US continuously for 7 years after having been admitted to the U.S. (in any status), AND
• you have not been convicted of an aggravated felony.  

212(c) Waiver:  You may be able to have a criminal conviction waived if you pled guilty before April 24, 1996.  You must:

§         be a permanent resident (have a green card), AND

§         have lived in the U.S. lawfully for 7 years, AND

§         have not served 5 years or more in prison for an aggravated felony.

3.  Asylum, Withholding of Removal and Relief under the Convention Against Torture 

Asylum:  You may be eligible to apply for asylum if you fear harm in your country because of your race, religion, national, actual or suspected political opinion, or membership in a social group (such as a clan, family, homosexuals, women opposed to certain practices, etc.).  You must apply for asylum within one year of arrival in the U.S. unless you show extraordinary or changed circumstances.

• Crimes that bar asylum:  You cannot win asylum if you were convicted of an aggravated felony or a particularly serious crime that indicates you might be a danger to the community, or if you assisted in the persecution of others.

Withholding of removal:  You may apply for withholding of removal even if you have an aggravated felony conviction, unless you were sentenced to five years or more of imprisonment.  You must show that your life or freedom would be threatened due to your race, religion, nationality, political opinion or membership in a particular group.  

Relief under the Convention Against Torture:  You may be eligible for relief under the Convention Against Torture if you fear you will be tortured if you return to your country.  Criminal convictions are not a bar.

4. Adjustment of Status:  You may be able to apply for permanent residency (a green card) if you:

• are married to a U.S. citizen, OR
• have a U.S. citizen child over 21 years of age, OR
• have a U.S. citizen parent.

You may be unable to get a green card if you were convicted of a crimes of moral turpitude (unless it had a possible sentence of one year or less and you were actually sentenced to six months or less), a drug crime (other than simple possession of 30 grams or less of marijuana), or two crimes where you received a sentence of 5 years or more.

 

Abused spouses and children who have been abused by a U.S. citizen or permanent resident spouse can file a self-petition for permanent residency, without the consent or knowledge of the abuser.  

5. 212(h) Waiver:  A 212(h) waiver may excuse you for certain crimes if you can prove that removing you from the United States would cause extreme hardship to a U.S. citizen  or permanent resident spouse, child or parent. 

6. Cancellation of Removal: You may be eligible for cancellation of removal even if you never had a green card if:

• you have been physically present in the U.S. for 10 years, AND
• you have maintained good moral character curing that time
• your deportation would case ‘exceptional and extremely unusual’ hardship to your U.S. citizen or lawful permanent resident spouse, parent or child.

Most criminal convictions bar you from this type of cancellation of removal because you cannot show good moral character.

 

Special rules apply to battered women and children.  Contact an attorney.  

7.  Registry:  You can get a green card through registry if you came to the U.S. before January 1, 1972 and have lived here ever since.  You must have good moral character and not have certain criminal convictions that would prevent you from being admitted to the U.S.

8.  Voluntary departure:  Voluntary departure is considered a relief to deportation, although it requires you to return to your country.  The advantage of voluntary departure over deportation is that it will be easier to return to the United States. 

For more information, see the Self Help Manual for Immigrants Detained by the Immigration Service, prepared by the Political Asylum/Immigration Representation Project and the Boston College Immigration and Asylum Project. 

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