What is a viable defense to removability?
A viable defense means that the alien seeking temporary release from bond falls under one of the circumstances that will exempt them from being removed from the US. It also means that the alien qualifies for relief from removal. The defense must be viable, meaning, that the alien has proof that they cannot be removed from the US. This will convince the Immigration Judge that the detained alien has no reason to flee, to go into hiding, and evade the removal proceedings.
What defenses against removal are available?
Mistake of the Department of Homeland Security (DHS)
Under this defense, an alien can argue that the Department of Homeland Security made a mistake in issuing a Notice to Appear for reasons such as:
- Mistaken identity (the detained alien is not the person DHS seeks to remove, the name is wrong or the detained alien is not the same person although they share the same name),
- Mistake in the charge (the DHS seeks to remove the detained alien for wrong reasons).
These defenses are viable because the DHS is a huge organization and there are plenty of opportunities to make mistakes in the paperwork (spelling of names, for instance). To avail of this type of defense, it is necessary not to admit or concede to the charges when the alien first appears before the Immigration Court. When this happens, the DHS officers will be duty-bound to present evidence to prove the correctness of the charges.
Availability of relief from removal
When an detained alien first appears before the Immigration Court, the detained alien may ask the court what types of relief that the detained alien may qualify for. There are circumstances that provide the detained alien relief from removal which means that although the detained alien should be removed, there are compelling reasons not to remove the detained alien.
What kinds of relief from removal may be available to aliens facing removal proceedings and aliens seeking temporary release from immigration detention?
Adjustment of status
This is available to aliens who entered the US legally on a non-immigrant visa but as their non-immigrant visa expired, they have found other reasons to ask for a change of status. Some examples are:
- They found employment that will qualify them for immigration (for example, a nursing student found work as a nurse);
- They are engaged to a US citizen and will soon marry the US citizen;
- They have found funds to allow them to apply for an investor visa;
Applying for asylum
This defense is available to detained aliens who have a reasonably well-grounded fear of persecution if they are returned to their home country. The fear of persecution may be because of their sex, gender, religious or political beliefs or activities. When a detained alien succeeds in obtaining asylum, the alien will be eligible for a work permit and stay in the US as an immigrant.
Cancellation of removal
This relief is available to detained aliens who should be removed from the US but their removal would be grossly unfair in certain circumstances such as:
- When the detained alien has been residing physically in the US for at least ten years and their removal will cause exceptional and extremely unusual hardship on a spouse, a parent or a child who is a US citizen or a US permanent resident.
- When the detained alien was in a marital or domestic relationship where they experienced extreme cruelty inflicted by a spouse, partner, parent or child.
This is available for aliens who have been brought to the US as a child or minor and they stayed illegally and grew up in the US and have studied and/or graduated in the US.
This is available to aliens who may be possible witnesses or informants in cases that the US government wants to investigate or prosecute. This is usually available to witnesses or informants who may also be victims of crimes such as human trafficking, international prostitution, drug trade, or child pornography trade.
Protection from Torture
This is a relief under the Convention Against Torture. It is available when the government or administration in the alien’s home country will torture the alien upon their return to their home country.
The alien may ask permission to leave the US of their own free will, and without waiting for an order of removal to be issued against them. When a detained alien departs the US voluntarily, and without a removal order having been issued against them, if they wish to return to the US, they will not be immediately inadmissible for having had a prior removal order. When a removable alien voluntarily departs the US, upon their return, no prior removal order will be automatically reinstated against them.
What happens when any of these defenses are available to the detained alien?
If the detained alien has proof that they qualify for relief or that they can present any of these viable defenses to fight against removal, then this will convince the Immigration Judge that the detained alien is not a flight risk and can be trusted to appear for the removal proceedings when they are released from immigration detention on bond.
Proof that a viable defense is available to the detained alien will not mean that there will no longer be any removal proceedings or that the removal proceedings will be terminated. Remember that the immigration bond hearing is separate and distinct from the removal proceedings.
If you are unsure if you qualify for any of the various reliefs from removal or if you are not sure whether your loved one has a viable defense against removal from the US, you may call and speak with any of the immigration attorneys who are ready and willing to assist you.