FirstAmericanImmigrationCenter

Deportation Defense

Asylum, U visa, VAWA

Deportation Defense

Those present in the United States who have suffered harm, or fear that they will suffer harm upon return to their home country, may be eligible for asylum, withholding of removal or relief under the Convention Against Torture.

Applicants must show that the harm they suffered or fear they will suffer rises to the level of “persecution” and that harm is based on one of the following:

  • Race
  • Religion
  • Nationality
  • membership in a particular social group
  • or an (actual or imputed) political opinion.

Important Notes for Asylum Applicants

  • If denied for asylum as an Out-Of-Status or Undocumented Immigrant, you will be referred to deportation proceedings immediately
  • You will be barred from applying for an asylum visa if you have already filed once before and were denied unless you can demonstrate that there are changed circumstances which materially affect your eligibility for asylum.
  • You must file all the necessary documentation within one year of entrance to the United States or of the expiration of your permitted U.S. stay.
  • Applying for an asylum visa may impact future visa applications such as an Optional Practical Training (OPT) Visa, or a H-1B Visa, as applying for an asylum visa portrays an intent to stay/ not return to country of residence which are key points to obtaining any temporary visa.

Certain victims of crimes who are helpful in an investigation of the crime may apply for U visa status and obtain work authorization in the United States. 

If the U visa is approved, removal proceedings can be terminated. In some circumstances, removal proceedings can be administratively closed while the U visa is pending.

In order to successfully win a deportation case based on Cancellation of Removal for Non-Legal Permanent Resident you must prove the following:

  • Continuous physical presence in the U.S. for 10 years
  • Qualifying relatives: a child, spouse, parent that is either a US Citizen or Legal Permanent Resident
  • Good moral character
  • Exceptional and Extremely Unusual Hardship to your qualifying relative

Under section 240(a) of the Immigration and Nationality Act (INA), you may qualify for cancellation of removal for legal permanent residents if you can prove to the Immigration Judge the following:

  • You have been a permanent resident for at least five (5) years
  • You have at least 7 years of continuous physical presence in the US after having been admitted under any status
  • You have not been convicted of an aggravated felony

Victims of certain crimes involving domestic violence may be eligible for relief under the Violence Against Women Act. These applications can serve as a defense to deportation.  VAWA allows for victims of domestic violence, child abuse or elder abuse to “self-petition” for lawful permanent residence without the cooperation or knowledge of the abusive spouse, partner, parent or adult child.  A blanket of confidentiality is provided to the applicant during the process thus allowing to stay until lawful permanent status is reached and they can leave their abuser.  Once approved, the VAWA self-petition provides the applicant with work authorization, deferred action and allows the applicant to apply for lawful permanent residency.  VAWA applicants are subject to the family preference system and any backlogs that could exist depending on their domestic situation.  However, there is no limit to the number of VAWA self-petitions that can be filed per year. 

Who qualifies for VAWA?

  • Spouses and former spouses of abusive U.S. citizens or lawful permanent residents.  If filed within 2 years of the termination of a marriage and if the termination is as a result of domestic violence, a divorced spouse can also file for VAWA.
  • Children under age 25 of abusive U.S. Citizens or lawful permanent residents.
  • The immigrant parent of an abused immigrant child, even if the parent themselves did not suffer abuse.
  • Non-citizen spouses whose children are abused by the child’s other U.S. citizen or lawful permanent resident parent.

To support the VAWA petition, in addition to proving abuse, the self petition must provide the following evidence:

  • Marriage was entered in good faith
  • The relationship with the abuser
  • The immigration status of the U.S. citizen or LPR spouse, parent or child.
  • Good moral character.
  • Resides with the abusive spouse, parent or child.
  • If the applicant is the non-abused immigrant parent, then they must prove the parent-child relationship between themselves and the abusive U.S. citizen or LPR spouse.
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