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Illegal Immigrants and Undocumented Alien Defenses

4 min read

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By Mara Cortez

Facing deportation and removal can be frightening. There are some strategies to help you remain in the U.S. despite your status as an undocumented alien.

If you are a non-citizen and have no legal status that allows you to be lawfully in the United States, the chance for removal and deportation lurks around every corner. However, there are a few options that undocumented aliens may choose to get relief from deportation if singled out for removal. Keep in mind, if you are facing deportation, you should connect right away with a skilled immigration or deportation lawyer who understands the nuances of removal to improve your chances of a successful deportation defense.

“Not Removable as Charged” Defense

This defense essentially posits that the government cannot remove you because you are not removable. At one of your initial hearings in front of the immigration judge, you will be required to deny or admit the charges against you leading to removal; this is found on the Notice to Appear. If you deny the charges, the burden of proof rests on the Department of Homeland Security. If it cannot produce sufficient evidence that you are deportable, the court may rule in your favor and the case for deportation may be closed.

It is important to note that you are likely removable if you are undocumented. Still, the possibility remains that the government may be trying to remove you for the wrong reasons. It is also a possibility that this defense could work if the government fails to produce documents showing your removability.

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The Importance of Honesty

You should never be dishonest in attempting to avoid removal because discovering that you’ve lied to immigration officials or the immigration judge can hurt your future ability to enter the country legally. Similarly, if you have negative information that might impact your ability to stay in the country, you should defer to your lawyer’s advice on whether or not you are required to share that info with the immigration judge.

Relief from Deportation

If the case for your removal has been validated and the government has met its burden of proof, there are a few steps you may consider to obtain relief from deportation. These include:

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Voluntary Departure

As difficult as it may sound, departing the country on your own, which is known as voluntary departure, is sometimes the best alternative. Agreeing to depart of your own accord rather than waiting to be removed or deported does not leave the same mark on your immigrant record, which otherwise would indicate that there was a previous order of removal and make it harder for you to come back to the United States legally. Discuss your situation with an immigration lawyer to determine if and at what point you should pursue this type of exit strategy.

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