Essential Guide to Deportation Defence Strategies

Table Of Contents

What Are Common Deportation Defence Strategies?

Common deportation defence strategies include seeking asylum, applying for cancellation of removal, and pursuing waivers. Each deportation defence strategy addresses specific circumstances of a non-citizen's case. A non-citizen's eligibility for a particular strategy depends on individual facts. The non-citizen's immigration history impacts available defence options. A non-citizen's criminal record also influences deportation defence choices. The non-citizen's family ties in the country play a role. A non-citizen's length of residence in the country also matters.
Other deportation defence strategies involve demonstrating a lack of deportability. A non-citizen shows no grounds for removal exist. The non-citizen proves the government made an error. The government must establish deportability by clear and convincing evidence. A non-citizen also challenges the immigration court's jurisdiction. A non-citizen asserts procedural violations by immigration authorities. A non-citizen's defence team collects evidence supporting the non-citizen's claims. The non-citizen's defence team presents legal arguments to the immigration judge.

How Does Asylum Provide Deportation Defence?

Asylum provides deportation defence when a non-citizen fears persecution in their home country. The non-citizen must show a well-founded fear of persecution. The persecution must relate to race, religion, nationality, political opinion, or membership in a particular social group. The non-citizen applies for asylum within one year of arrival. Exceptions to the one-year filing deadline exist for changed circumstances or extraordinary circumstances.
The asylum seeker presents evidence of past persecution or a well-founded fear of future persecution. Evidence includes personal statements, witness testimonies, and country condition reports. An asylum officer interviews the asylum seeker. If the asylum officer does not grant asylum, the case refers to an immigration judge. The immigration judge conducts a hearing. The immigration judge decides on the asylum application.

What Is Deportation Defence Through Cancellation Of Removal?

Deportation defence through cancellation of removal is a form of deportation defence available to certain non-citizens. Non-permanent residents apply for cancellation of removal. Permanent residents apply for cancellation of removal. The eligibility requirements differ for each group. Non-permanent residents demonstrate continuous physical presence for ten years. Non-permanent residents show good moral character. Non-permanent residents show exceptional and extremely unusual hardship to a qualifying relative.
Permanent residents reside in the country for seven years after admission. Permanent residents are permanent residents for five years. Permanent residents do not commit certain serious crimes. An immigration judge makes the final decision on a cancellation of removal application. The immigration judge considers all evidence presented. The immigration judge weighs favourable and unfavourable factors.

Why Are Waivers Important in Deportation Defence?

Waivers are important in deportation defence because waivers excuse certain grounds of deportability or inadmissibility. Various types of waivers exist. A waiver allows a non-citizen to remain in the country despite a past violation. Common waivers include waivers for fraud or misrepresentation. Other waivers address criminal convictions. Waivers also cover unlawful presence.
A non-citizen files a waiver application with the appropriate immigration authority. The non-citizen provides supporting documentation. The non-citizen demonstrates eligibility for the specific waiver sought. An immigration judge or an immigration officer adjudicates the waiver application. The decision depends on the specific facts of the non-citizen's case. The decision also depends on the discretion of the adjudicator.

What is Voluntary Departure in Deportation Defence?

Voluntary departure is a form of relief from deportation. Voluntary departure allows a non-citizen to leave the country voluntarily. The non-citizen avoids a formal order of removal. A non-citizen requests voluntary departure before or during deportation proceedings. An immigration judge grants voluntary departure under specific conditions. The non-citizen must show good moral character.
A non-citizen must also demonstrate the financial ability to depart. The non-citizen posts a bond to make sure departure. The non-citizen must leave the country within a specified timeframe. Failure to depart voluntarily results in a formal removal order. A formal removal order carries significant penalties. These penalties include a bar to future immigration benefits.

How Does Prosecutorial Discretion Affect Deportation Defence?

Prosecutorial discretion affects deportation defence by allowing immigration authorities to exercise leniency. Immigration authorities choose not to pursue removal proceedings. Immigration authorities also choose to close existing removal proceedings. This discretion applies to various stages of the immigration process. It allows for a more individualised assessment of a non-citizen's case.
A non-citizen or their representative requests prosecutorial discretion. The request highlights favourable factors in the non-citizen's situation. Favourable factors include strong community ties and a lack of criminal history. Favourable factors also include humanitarian considerations. The immigration authorities consider these factors when making a decision. Prosecutorial discretion does not grant a legal right to remain in the country.

FAQS

What is the primary goal of deportation defence?

The primary goal of deportation defence is to prevent a non-citizen's removal from the country. Deportation defence aims to secure legal status for the non-citizen. Deportation defence protects the non-citizen's right to live in the country. Deportation defence also maintains family unity.

How does a non-citizen qualify for asylum?

A non-citizen qualifies for asylum by demonstrating a well-founded fear of persecution in their home country. The persecution must be based on specific protected grounds. The non-citizen must file the asylum application within one year of arrival.

What are the main requirements for cancellation of removal for non-permanent residents?

The main requirements for cancellation of removal for non-permanent residents include ten years of continuous physical presence. The non-permanent resident must show good moral character.

When is a waiver typically used in deportation defence?

A waiver is typically used in deportation defence when a non-citizen has a ground of deportability or inadmissibility. The waiver excuses the specific ground. This allows the non-citizen to pursue legal status. Waivers address various issues, including past violations.

What happens if a non-citizen fails to depart voluntarily?

What happens if a non-citizen fails to depart voluntarily? A non-citizen receives a formal order of removal. A formal order of removal carries significant penalties. The non-citizen faces potential re-entry bars.

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