Defenses Against Deportation for Visa Violations and Overstay in the U.S.

By Brian Figeroux, Esq.

Introduction

When a person enters the United States on a visa and overstays their authorized time, they may be subject to deportation (also known as removal). U.S. Immigration and Customs Enforcement (ICE) often apprehends individuals who have violated the terms of their visa, leading to a deportation process. Deportation can have devastating consequences, including permanent bars to re-entry, separation from family, and loss of livelihood. However, there are several legal defenses available to individuals facing deportation due to visa violations and overstays. Read more at www.askthelawyer.us. To read the complete analysis in our publication, click here, and on our immigration blog, click here.

This article provides an in-depth analysis of the defenses available for someone who has been apprehended by immigration authorities and faces deportation after overstaying their visa. It also explores the legal avenues one can take to avoid removal and highlights the importance of working with an experienced immigration attorney to successfully present these defenses.

The Deportation Process for Visa Overstays

Before diving into the defenses, it is important to understand how the deportation process unfolds for someone who has violated their visa terms by overstaying in the U.S.

When someone overstays their visa, they become “unlawfully present” in the U.S. and lose their legal immigration status. This can make them vulnerable to deportation if they come into contact with immigration authorities. Apprehension can happen during routine immigration checks, traffic stops, or other law enforcement encounters.

Once apprehended, the individual is typically placed into removal proceedings. This begins with a “Notice to Appear” (NTA), which is a formal document issued by the Department of Homeland Security (DHS) stating that the individual is subject to removal. The NTA outlines the charges against the person, such as overstaying their visa or violating the terms of their admission to the U.S.

After receiving the NTA, the individual must appear before an immigration judge in immigration court. During this time, they have the right to present defenses against deportation.

Key Deportation Defenses for Visa Overstays

Several legal defenses are available to individuals facing deportation due to visa violations or overstays. These defenses depend on the individual’s circumstances, including their family relationships, fear of returning to their home country, or eligibility for certain types of visas. Below are the most common defenses that immigration attorneys use to prevent deportation.

1. Cancellation of Removal for Non-Permanent Residents

One of the most common defenses in removal proceedings is applying for cancellation of removal. This form of relief is available to certain non-permanent residents who meet specific criteria. Cancellation of removal effectively halts the deportation process and allows the individual to apply for a Green Card.

To qualify for cancellation of removal, the person must meet the following criteria:

• Continuous Presence in the U.S. for at least 10 years: The individual must have been physically present in the U.S. for at least 10 years prior to the initiation of removal proceedings.
• Good Moral Character: The individual must demonstrate good moral character during their time in the U.S. This means they cannot have been convicted of certain crimes, including aggravated felonies.
• Exceptional Hardship to a U.S. Citizen or Lawful Permanent Resident (LPR) family member: The individual must show that their removal would result in “exceptional and extremely unusual hardship” to a spouse, parent, or child who is a U.S. citizen or Green Card holder. The hardship must be more than the typical hardships that arise from separation due to deportation.

While cancellation of removal is a powerful defense, it is discretionary. This means that even if someone meets all the requirements, the immigration judge has the final say on whether to grant relief.

2. Adjustment of Status

Another possible defense for someone facing deportation due to a visa overstay is adjustment of status. Adjustment of status allows an individual to apply for lawful permanent residency (a Green Card) while remaining in the U.S., without having to return to their home country.

To qualify for adjustment of status, the individual must be eligible for a Green Card through family sponsorship, employment, or another eligible category. For example, an individual married to a U.S. citizen could apply for a Green Card through the marriage-based Green Card process.

In cases involving visa overstays, adjustment of status is a viable defense if the person:

• Entered the U.S. legally (with inspection and admission at a port of entry, even if they later overstayed their visa).
• Has an immediate relative who can sponsor them, such as a U.S. citizen spouse, parent, or child over the age of 21.

Adjustment of status is a common defense for people facing deportation, as it allows them to obtain legal residency while fighting removal. However, this option is not available to individuals who entered the U.S. illegally without inspection, except in certain circumstances involving waivers.

3. Asylum, Withholding of Removal, or Protection Under the Convention Against Torture (CAT)

For individuals who fear returning to their home country due to persecution or harm, asylum and related forms of protection can be powerful defenses against deportation.

• Asylum: Asylum is available to individuals who can demonstrate that they have suffered past persecution or have a well-founded fear of future persecution in their home country based on race, religion, nationality, political opinion, or membership in a particular social group.

To qualify for asylum, the individual must apply within one year of their arrival in the U.S. unless they can show that changed circumstances or extraordinary circumstances prevented them from filing on time. Even if an individual has overstayed their visa, they may still be eligible for asylum if they meet the other requirements.

• Withholding of Removal: Withholding of removal is similar to asylum, but it has a higher standard of proof. The individual must show that it is “more likely than not” that they would face persecution in their home country if deported. Withholding of removal does not lead to a Green Card, but it does prevent the individual from being deported to their home country.
• Protection Under the Convention Against Torture (CAT): Individuals who fear they will be tortured by their government or by groups the government cannot control may be eligible for protection under the Convention Against Torture. Like withholding of removal, CAT protection does not lead to permanent residency but prevents deportation to the country where the person would face torture.

These forms of relief are especially important for individuals from countries with a history of human rights abuses or conflict, and they provide a critical defense against deportation when returning home is not a safe option.

4. Voluntary Departure

In some cases, individuals facing deportation may opt for voluntary departure as a defense. Voluntary departure allows the person to leave the U.S. at their own expense within a specific period, usually 60 to 120 days, instead of being forcibly removed by the government.

The benefits of voluntary departure include:

• Avoiding a formal deportation order: A deportation order can result in a multi-year bar (3 to 10 years) on re-entering the U.S., while voluntary departure does not impose such severe penalties.
• Preserving future immigration options: Choosing voluntary departure may leave the door open for future legal re-entry into the U.S., especially if the person can resolve their immigration issues in their home country.

However, voluntary departure should only be considered if other defenses are not viable, as it still requires the individual to leave the U.S.

5. Waivers of Inadmissibility

In some cases, individuals facing deportation due to visa overstays or other immigration violations can apply for waivers of inadmissibility. A waiver forgives certain immigration violations, allowing the person to remain in the U.S. and adjust their status.

Common waivers include:

• I-601 Waiver: For individuals who are inadmissible due to unlawful presence, misrepresentation, or other grounds, the I-601 waiver can be used to ask the government to forgive these violations. The individual must show that their removal would cause “extreme hardship” to a U.S. citizen or lawful permanent resident spouse or parent.
• I-601A Provisional Waiver: This waiver allows individuals to apply for a waiver of unlawful presence before leaving the U.S. to attend a consular interview. It is designed to reduce the time the person spends outside the U.S. while waiting for their Green Card.

Waivers of inadmissibility are critical tools for those facing deportation who have an avenue to obtain a Green Card but are inadmissible due to their immigration violations.

6. Prosecutorial Discretion and Administrative Closure

Prosecutorial discretion is a defense that involves requesting ICE or the immigration court to exercise leniency in a case. Prosecutorial discretion can take many forms, including:

• Administrative Closure: Temporarily suspending removal proceedings.
• Stay of Removal: Temporarily halting the deportation process, often due to compelling humanitarian reasons.
• Deferred Action: Allowing the individual to remain in the U.S. without the threat of immediate deportation.

Prosecutorial discretion is often requested in cases where the individual has strong ties to the U.S. (such as family members who are U.S. citizens), no criminal history, and other compelling factors that make deportation unjust or unnecessarily harsh.

While prosecutorial discretion is not guaranteed and is subject to the policies of the current administration, it can be a valuable defense for individuals facing deportation who have limited legal options.

Why Legal Representation is Critical in Deportation Defense

Facing deportation is a life-altering event, and the immigration system is complex and challenging to navigate. An experienced immigration attorney can make all the difference in a deportation defense case by:

• Identifying the most appropriate defenses.
• Filing the necessary forms and gathering critical evidence.
• Representing the individual in immigration court.
• Negotiating with ICE and seeking prosecutorial discretion where applicable.

In many cases, individuals with legal representation have a significantly higher chance of success in avoiding deportation than those who go through the process without legal counsel.

Conclusion

When someone is apprehended for overstaying their visa or violating the terms of their stay in the U.S., deportation is a real and frightening possibility. However, various legal defenses are available to help individuals fight removal and remain in the U.S. By understanding the different defenses, such as cancellation of removal, adjustment of status, asylum, and waivers, individuals can better protect their rights and their future in the U.S.

If you or a loved one is facing deportation, seeking legal assistance is crucial. The right attorney can evaluate your case, present a strong defense, and increase your chances of remaining in the U.S. The Law Firm of Figeroux & Associates, which has over 25 years practicing immigration law, can help you navigate the process and avoid common pitfalls. To schedule an appointment, visit www.askthelawyer.us or call 855-768-8845. The lawyer you hire does make a difference!