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Can Immigrants Without Documents Fight Deportation At Court?

QUESTIONS AND ANSWERS

My Father Was Arrested For Not Having Immigration Papers.
He Has Court In Two Months. Can He Fight Deportation?

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Question:

“Can you get deported if you get caught working with no permission? My father is an immigrant. His boss sent him to work at a house to paint and do other types of work. On the way, he was stopped and he was turned over to immigration. My dad is not legally here. The police let him go but he has court now in two months. Can he get deported??“

(Submitted by Graciela B., Oceanside, CA)

Answer:

There are many details I do not have. Without this information, I will need to make some assumptions about your father’s situation.

To begin, I don’t think your father’s employment is the main concern here. Being deported is probably a much larger problem for him.

You said that he is not legally here. As a result, it seems he was most likely taken into immigration custody because he does not have legal documents to live in the U.S.

When you wrote that he is going to court, my hunch is you meant immigration court. If my guess is correct, he has to face deportation charges. If he loses, he will be ordered to be removed back to his home country.

So in my view, his main worry is whether he can put together a strong defense against deportation.

The strength of his defense will depend, in part, on his immigration history.

Was your father ever a permanent resident?

Did you father even have legal documents to live and work in the U.S.?

If he was a permanent resident, why isn’t he a green card holder today?

For instance, did he leave the country and return several years later?

Or was he been stripped of it after a conviction?

Has he ever been ordered deported or granted voluntary departure by an immigration official?

Did you father ever reside in the U.S. legally?

Here are some examples.

Maybe he once had a temporary resident card under the Reagan Legalization program of the 1980s. At that time, Many individuals who were temporary residents were unable to become permanent residents because they could not prove their work history.

Perhaps your father entered the country with a visa. But when it expired, he did not go back to his home country.

What type of relief might be available to your father?

Potentially, there are several avenues open to him, if he can meet the specific requirements.

What is your status? Are you a U.S.citizen? Maybe you qualify to sponsor him for a green card.

Or maybe someone in your family has filed for him but he is still waiting for an interview date?

Of course, he may not be eligible for such options.

This means he would likely be restricted to seeking cancellation of removal as a defense. In these types of removal cases, the most important issue is hardship.

Proving hardship is not easy. Your father has to provide information demonstrating how much suffering you, your mother, and your minor brothers and sisters will go through if he is deported.

It takes a lot of good evidence to win these types of cases.

Here’s a graph to help you figure out what types of evidence your father needs to show the judge.

batara-immigration-hardship-factors-wheel

For more detailed information about how to fight deportation charges at immigration court, see A Modern Approach To Immigration Hardship Factors.

It’s my personal opinion, however, that these types of cases are too complicated for immigrants to handle on their own without the help of an immigration lawyer.

By Carlos A. Batara

(Filed Under Q&As: Deportation And Removal Defense)

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