Area of Law:
If you or someone you know has been served with an order of deportation, it can be frightening. The person who received the order may be building a life in the United States and may have developed ties that make it important to that person to remain in the country. There are, however, several vehicles that may allow someone who has had deportation proceedings initiated against them to remain in the United States.
Of course, the first step is to seek counsel from an immigration lawyer, who will then try to guide you through one of the following methods for avoiding deportation.
Waiver of Inadmissibility
A potential deportee may apply for a waiver of inadmissibility to stay in the country. He or she may qualify for this in a number of situations. If the applicant is being deported because they have been unlawfully present in the country, they committed immigration fraud, or due to membership in a totalitarian party, the applicant must establish that their spouse or parent would suffer extreme hardship if the application were denied. The spouse or parent in question must either be a legal permanent resident of the United States or a U.S. citizen in order for them to qualify under this.
If the applicant has been declared inadmissible on criminal grounds, they could be given a waiver depending on the nature and proximity in time of the crime. If the criminal activity that resulted in their deportation was due to participation in prostitution or 15 years have passed since the event that made him or her inadmissible, the applicant must show that they have been rehabilitated and that their re-admission would not be contrary to the national welfare, safety, or security of the United States.
Cancellation of Removal
The potential deportee can apply for cancellation of removal under Section 1229 of the US Immigration Code if they have been a lawful permanent resident for five years and they meet the following three requirements: (1) he or she resided continuously in the United States for a minimum of seven years after being admitted; (2) he or she has not been convicted of an aggravated felony; and (3) he or she is not inadmissible to the United States on security grounds.
There are certain factors that weigh into this determination. If the person has familial ties within the United States or their deportation would result in hardship to them and/or their immediate family it will go in their favor. A history of being a regularly employed tax payer also works to the applicant’s advantage, especially if the employment includes service in the United States Armed Forces. Other considerations such as good moral character and service in their community will also be considered.
On the other hand, if the circumstances surrounding the deportation are particularly bad, for example, the applicant has been a party to other immigration or criminal violations or there is evidence of a bad moral character, the extraneous factors may work against them.
If the deportee is a non-permanent resident who has been physically present in the United States for a continuous period of ten years prior to the commencement of removal proceedings, he or she may still cancel their removal. The applicant must have been a person of good moral character for ten years. The reason for their deportation must not have been for criminal or security grounds, marriage fraud, failure to register, or falsification of documents. Furthermore, the deportation must result in an exceptional and extremely unusual hardship to his or her spouse, parent, or child, who must also be lawful permanent residents of the United States or U.S. citizens.
Suspension of Deportation
The deportee may qualify for suspension of deportation in order to apply for permanent residence in the United States if they meet three conditions. First, he or she must have been continually physically present in the United States for at least seven years. Second, the applicant must be a person of good moral character, and third, he or she must show extreme hardship upon deportation of his or her self, spouse, child, or parent, who are citizens or legal residents of the United States.
People who have a reasonable fear of persecution if they are forced to return to their home country may apply for asylum. Asylum will be granted if the reason for that persecution is for their political opinion, religious beliefs, nationality, race, or membership of a particular group.
If all else fails, then the right decision is to apply for voluntary departure from the United States. Leaving the United States by their own volition will not subject the foreign citizen to the legal impediments that are imposed upon deportees to return to the country.