Introduction to Illegal Immigrant Deportation Defense
What is the illegal immigrant deportation defense? For undocumented immigrants in the United States, a successful defense against a charge of deportation may seem like an impossibility. After all, without a green card or visa, an immigrant had no right to enter the United States in the first place. However, even for immigrants without these documents, a successful defense against deportation is possible with the right defense attorney and evidence.
The United States Now:
Deportation is an extremely divisive issue in the United States today, and is one of the greatest criticisms of the Obama administration. Following a wave of illegal immigration from Central America in 2014, Obama increased the power and jurisdiction of the United States Border Patrol. In the months of October and November of 2015, Border Patrol apprehended 12,000 families, a 300 percent increase from only one year prior.
Although the Obama’s administration’s stance of deportation focuses on pursuing criminals, this huge spike in deportation tells another story. On one side, proponents of secure borders approve of the Obama administration’s actions, believing these mass deportations will deter another wave of Central American immigrants. However, many experts believe this is not the case. Deportations will not stem the flood of immigrants, because Central American immigration is most commonly done in response to violence and persecution- things which are still far worse than a potential future deportation.
The other side believes that Obama has betrayed the Hispanic base who voted for him in 2012. They believe that if Obama’s deportation policies center around deporting those who pose a national security threat, why is he deporting families with no prior offenses?
There is no right side to this issue. The United States must have borders, and there must be standards to obtain legal residency. Without these standards, the United States would lose respect, and immigration would be a chaotic affair. Yet, the United States also considers herself one of the wealthiest and most altruistic countries in the World. If we deport those escaping violence and persecution in the third world, we are essentially condemning them ourselves.
If you have been found as an illegal immigrant and may be deported, the following article will provide a breakdown of both the process of appeals as well as possible defenses.
Using Sympathy, and why it does not work:
Most undocumented immigrants are undocumented for a reason. That reason could be financial, logistical, or geographical, but in most cases, illegal immigration in any form comes paired with a harrowing story. Although it may be tempting to use this story in order to garner sympathy from a judge or jury, it simply will not work.
For one, immigration court is different from normal court proceedings, largely because there is no jury. While a sympathetic story may work for an impressionable jury, a judge is not so easily swayed by the use of pathos- especially when they are sworn to be impartial between the defense and the Department of Homeland Security. Moreover, with the number of cases in the Immigration Court (especially in states like Arizona), a judge will likely not have time to hear your sob story, especially if it is devoid of formal evidence. Although the burden of evidence is on the State- which means that the Department of Homeland Security must prove that you are indeed an undocumented immigrant without extenuating circumstances- the Judge will likely deport someone whose only defense is along the lines of: “I have a family who needs me.” A Judge is not a jury- they will likely not be swayed by impassioned testimony or appeal to pathos.
The Removal Hearings Process:
When a removal proceeding is declared, the alleged grounds for removal, the defendant’s right to an attorney, and the consequences for not appearing at hearings are all presented to the defendant. The following will serve as a breakdown of the Removal Hearings Process-
Master Calendar Hearing-
The Master Calendar Hearing is extremely important, and is where the requirements and dates for defense hearings are detailed. Failure to attend the Master Calendar Hearing carries with it extreme consequences, including immediate deportation and inability to apply for a visa for ten years. If the defendant does not believe that they or their attorney could summon a successful defense, they could admit their illegality in this Master Calendar Hearing. This is called a Voluntary Removal. A Voluntary Removal carries with it less punishments than a full deportation, as well as more lenient return qualifications. Although one should not declare Voluntary Removal if they have a legitimate defense, VR could be very beneficial in cases where the defendant’s residency status is indefensible. A list of possible defenses will be detailed later.
After you and your attorney have discussed a possible defense, the merit hearings are where that evidence will be presented. The defendant will likely be put on the stand to testify, with a hired attorney asking the questions. Several types of evidence can be presented, including photographs and both expert and familial testimony.
The biggest misunderstanding when it comes to deportation defense is the defendant thinking: “what is the point of hiring an attorney if I am illegal anyway?” Even if you do not have a green card or temporary visa, there are several defenses an attorney can feasibly utilize depending on the situation.
– Adjustment of Status- There are two possible adjustments of status, both under the Immigration and Nationality Act. The first is under Section 245, which allows a non-resident to immediately become a green card resident. Among several other requirements, the main requirement to use this defense is prior legal entry. In other words, only those immigrants who came here legally on a visa that expired are eligible for this status. The second is under Section 249, and is available only for those who entered the United States before 1972, and who have never strayed from exhibiting good moral character.
– Asylum- Asylum is a broad designation, but generally includes those who fled persecution or who legitimately feared future persecution in their home country. To successfully use an asylum defense, the defendant must prove that their home country is still exhibiting the persecution from which they had previously fled. Also, the defendant had to have originally fled for one of the following reasons: race, religion, nationality, social group, or political opinion.
– Cancellation of Removal- A defendant could be eligible for cancellation of removal if they meet two main conditions. The first is that the defendant has a qualifying relative- or a relative who is a legal resident of the United States. The second condition is that the defendant has resided in the United States for a continuous ten year span. If the defendant can provide these conditions, along with proof of extreme hardship for the qualifying relative if they are deported, a cancellation of removal could prove to be a successful defense against deportation.
– Violence Against Women Act- This defense is similar to the cancellation of removal in that the defendant is only eligible with a qualifying relative. However, under this Act, the defendant must only provide evidence of three years of continuous residency, along with proof of “extreme cruelty” by said qualifying relative.
– DACA or Deferred Action for Childhood Arrivals- DACA was established in 2012 by President Barack Obama, and was enhanced in 2015. Currently, DACA has many requirements for eligibility, including:
-had not yet turned age 16 when you came to the U.S. to live
-have continuously lived (“resided”) in the U.S. since June 15, 2010 up to when you apply (excluding any brief, casual, and innocent departures)
-were physically present in the U.S. on June 15, 2012, and also at the time you apply for deferred action
-either entered the U.S. without inspection before June 15, 2012, or if you entered with inspection, your lawful immigration status (such as a visa or Temporary Protected Status (TPS)) had expired as of June 15, 2012
-are either in school now (unless absent for emergency reasons), have graduated or earned a certificate of completion from an accredited high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States, and
-have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors; and do not otherwise present a threat to U.S. national security or public safety (such as by being a member of a gang).
If you do meet all these qualifications, your deportation could possibly be deferred up to three years. However, this is more a band-aid than a full-fledged solution. DACA does not provide citizenship, a green card, or even amnesty. It simply defers the deportation to a later date. It also, much to the chagrin of parents, does not transfer to the relatives of DACA eligible immigrants, making the separation of families a distinct and painful possibility. For an overview of US deportation/removal proceedings see the article from AllLaw.
-Prosecutorial Discretion- Prosecutorial Discretion is when the Department of Homeland Security decides to drop your case to pursue other cases. This is extremely rare, and usually only happens when the defendant presents an unbelievably sympathetic story which convinces the DHS that this illegal resident is no danger, and is indeed a benefit, to society.
The future of immigration policy is, as it always is, completely dependent on future circumstances. What happens around the world has a direct and lasting effect on legal and especially illegal immigration to the United States. However, looking at the current Presidential Race gives us a good sense of the future of our country.
If a Republican like Donald Trump is elected, it is clear that the Border Patrol will be expanded, walls will be built, and current illegal immigrants will probably be consciously sought and deported. It is clear that Republicans believe illegal immigrants do not deserve a pathway to citizenship, and instead should be deported back to their home countries without deliberation.
If a Democrat like Bernie Sanders is elected, it seems that immigration will be expanded. However, this is not to say that Democrats believe that illegal immigration is a good thing. Democrats believe that immigrants add to this country, rather than detract, so their goal will probably be to make obtaining a green card easier for prospective residents, rather than forcing people into illegal immigration due to restrictive policies. Moreover, most liberals believe that illegal immigrants who are already in the United States should be grandfathered into these policies, and given a clear pathway to citizenship.
Interested in learning more about deportation law in the state of Arizona? We’d love to hear from you! Comment below or reach out to us on our social media channels. If you need criminal defense help for deportation in the state of Arizona, contact an experienced Phoenix defense attorney today.