Guide for Detained Immigrants: Deportation Defenses

Relief is the term used to describe an immigration benefit. To figure out if you qualify, look at the requirements for each benefit. Usually, you must meet all the requirements. This means that even if you meet four out of five requirements, you still might not get the benefit. Being granted a benefit generally means you can stay in the United States, but there are exceptions.

To seek relief, you generally apply to the immigration judge, who will set an individual hearing to decide your case. This article provides an overview of some of the most common forms of relief.

Being a United States citizen is the ultimate defense to deportation because U.S. immigration laws clearly state that citizens cannot be deported.

If you are facing deportation, there are two main ways you might become a U.S. citizen:

1. Birth in the U.S. (commonly known as birthright citizenship)
2. Through a parent or grandparent who is a U.S. citizen (acquired citizenship and derived citizenship).

If you believe that you might be a U.S. citizen and are in the middle of deportation/removal proceedings, talk to an immigration lawyer or accredited representative for help as soon as possible.

Click here for more information on U.S. citizenship. There are other ways to become a U.S. citizen, but birthright, acquired, and derived citizenship may be the most useful avenues for you if you are facing removal.

Acquired U.S. citizenship arises when one of your parents is a U.S. citizen, either by birth or naturalization. They pass their citizenship on to you. To “acquire” U.S. citizenship, your parent must have been a U.S. citizen before you were born. It may be possible for your parents to acquire U.S. citizenship from their parents (your grandparents), and then for you to acquire U.S. citizenship from your parents.

To prove that you acquired U.S. citizenship, you must show (among other things) that your U.S. citizen parent lived in the U.S. before you were born for the required number of years. The exact requirements, including the number of years that your parent must have resided in the U.S., depend on your birth year.

If you are in removal proceedings —but think you might be a U.S. citizen—hire a lawyer or accredited representative to represent you.

Derived U.S. citizenship arises when (1) you become a lawful permanent resident before you turn 18, and (2) one of your parents becomes a U.S. citizen through naturalization before you turn 18. Depending on your birth year, the law may require that both of your parents were naturalized before you turned 18.

Like acquired citizenship, your birth year determines the requirements, which can be complicated. If you are in removal proceedings —but think you might be a U.S. citizen—hire a lawyer or accredited representative to represent you.

The process of applying for Lawful Permanent Resident (LPR) status is called adjustment of status (or consular processing, if the person cannot be physically present in the United States to apply). Only some family members can file a petition on your behalf asking that you be granted lawful permanent residence.

Under immigration law, U.S. citizens can apply to adjust status on behalf of their:

• Spouse
• Children
• Parent
• Siblings

Lawful permanent residents may apply for their:

• Spouse
• Unmarried children (under age 21)

Adjustment of status, which is the process of applying to become a lawful permanent resident (LPR), is actually a two-part process. 

How you entered the U.S., as well as your family relationship, will determine whether you can apply for LPR status in the United States via adjustment of status, or if you must return to your home country to apply for LPR status (see consular processing, below). If you entered the U.S. lawfully, with a visa or parole, and have an immediate relative in the U.S. who can sponsor you, you may apply for adjustment of status while you remain in the U.S.

The first part of the process is filing an I-130 Petition for Alien Relative with United States Citizenship and Immigration Services (USCIS). The I-130 must be filed on your behalf by a U.S. citizen or LPR family member. Once the I-130 is approved, USCIS will send notice of the approval.

There is a waiting period for many people between approval of the I-130 and the time when they are actually eligible to apply for adjustment of status.

The following people are classified as immediate relatives and are not subject to the waiting period. They can apply for adjustment of status as soon as USCIS approves the I-130. They might even be able to file the I-130 and application for adjustment of status simultaneously.

The following are immediate relatives:

• Spouses of U.S. citizens
• Parents of U.S. citizens
• Children of U.S. citizens who are unmarried and under 21 when the I-130 is filed

If you don’t fall into one of the categories mentioned immediately above, then you can’t apply for adjustment of status until your priority date is current—that is, until the government starts working on petitions filed on or before the date your petition was filed. Your priority date will be on your I-130 Approval Notice (Form I-797).

The second part of the process: Once the I-130 has been approved, you can apply for adjustment of status by filing Form I-485.

Consular processing is how to apply to become an LPR if you entered the U.S. without permission or are not the immediate relative of an LPR or citizen. You must return to your home country and apply for LPR status from there. However, you might not have to return to your home country if anyone filed a Form I-130 for you (or sometimes, for your spouse or your parents) before April 30, 2001, and/or if you have a parent, spouse, or child who is or was a member of the U.S. armed forces.

Certain crimes and immigration law violations can make you ineligible for adjustment of status or consular processing. Again, if you are in removal proceedings and think you qualify for adjustment of status or consular processing, hire a lawyer or accredited representative to assist you.

Another way to stay in the United States if you are in removal proceedings could be to apply for registry. With registry, you are creating a legal record of entry where you don’t otherwise have one. You might be eligible to apply for registry if you can prove that you:

• have lived in the U.S continuously since January 1, 1972;
• have never been deported;
• are not ineligible for citizenship;
• are of good moral character;
• are not inadmissible under grounds related to Nazi persecution or terrorist activity (among other grounds).

Certain crimes make you ineligible for registry. If your application for registry is granted, you will get LPR status. 

One way for lawful permanent residents to stay in the U.S. is 212(c) suspension of deportation for lawful permanent residents.

If you are an LPR facing removal from the U.S. because of a criminal conviction that happened before April 1, 1997, you might qualify for 212(c). If approved, 212(c) means you are forgiven for your conviction and can stay in the U.S.

When determining if you should be granted 212(c), the judge will look at factors including:

• How many years you have been an LPR
• Your employment history
• Your history of paying taxes
• Your family ties
• Your health

One important thing about applying for 212(c) is that the judge has lots of flexibility when deciding whether to grant this benefit. Just because you can show that you meet all the requirements doesn’t mean that you will be granted this benefit.

You must show that you deserve to keep your LPR status. When determining whether you deserve to keep your LPR status, the judge will consider how remorseful you are, how many criminal convictions you have, how recent your criminal convictions are, etc. If you think you qualify and want to apply for 212(c), complete and submit Form I-191.

If you think you qualify for 212(c), hire a lawyer or accredited representative. If your application for 212(c) is granted, you can keep your residency.

If you are an LPR who violated certain immigration laws or committed certain crimes, you could lose your residency status and be removed (deported) from the U.S.

The most common benefit that LPRs seek is Cancellation of Removal for LPRs, which can let you keep your residency. If you are an LPR and can show the following, you may qualify for cancellation of removal for LPRs:

1. You have been an LPR for at least five years;
2. As of the day you committed the crime that makes you deportable, you had lived in the U.S. continuously for at least seven years after being legally admitted, and
3. You have not been convicted of an aggravated felony as defined by federal law.

An aggravated felony is defined differently under federal law than under state law. The definition that matters is the federal definition of an aggravated felony. A long list of crimes are aggravated felonies. The most common are murder, rape, sexual assault of a minor, drug trafficking, some violent crimes, and serious theft crimes.

Hire a lawyer if you are an LPR convicted of a crime. The evaluation of whether your crime is an aggravated felony is a critical aspect of your case. If the judge finds that one of your crimes is an aggravated felony, and you are ineligible for another benefit that would allow you to stay in the U.S., you will be deported. Immigration judges cannot consider any benefit for you under those circumstances.

If you are an LPR with a criminal conviction that is not an aggravated felony, submit Form EOIR42A to the immigration judge. You will have to provide evidence to support your application. The judge will consider several things when deciding if you should be granted cancellation of removal, including:

• How long you have been an LPR
• Your employment history
• Your history of paying taxes
• Your family ties
• Your health

As with 212(c) applications, the judge has lots of flexibility when deciding if you should be granted this benefit. You might meet all the requirements, but that does not mean that you will get the benefit. You must show that you deserve to keep your LPR status.

When determining whether you deserve to keep your LPR status, the judge will consider how remorseful you are; how many criminal convictions you have; and how recent your criminal convictions are, plus the factors mentioned above. 

Cancellation of removal for nonpermanent residents (“10-year”) is a form of relief that people typically think of as applying for residency based on the number of years you have lived in the United States. It might sound easy to meet the requirements of this benefit, but it isn’t.

If you are not an LPR, and you apply for cancellation of removal, you must prove:

1. You have lived in the U.S. continuously for at least the last 10 years;
2. You have a spouse, parent or child who is a U.S. citizen or legal permanent resident who would suffer exceptional and extremely unusual hardship if you were removed;
3. You are a person of good moral character; and
4. You have not committed certain crimes.

Proving requirements Nos. 1, 3, and 4 is straightforward.  These requirements will be evaluated by the judge largely based on your documentation.

But proving requirement No. 2 is hard. The suffering must be “exceptional and extremely unusual.” This means that the suffering that families experience following a separation—including financial hardships and the emotional toll of being separated—won’t be enough by itself. You must show that the suffering that your family will face is going to be worse than what is usually experienced when a family is separated. Talk to an immigration attorney for help

Yes. It is a crime to re-enter the U.S. without permission after you have been deported. If you are found guilty in federal court, you can be sentenced to up to 20 years in prison.

If you are ineligible for any forms of relief from removal, but want to return to the United States legally someday, consider asking for voluntary departure. You won’t qualify for voluntary departure if you have been convicted of certain crimes; if you have been granted voluntary departure in the past; or if you have previous deportations. If you are granted voluntary departure, you must leave the U.S. and pay for your own travel home.