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Five Tips for Avoiding Deportation

Now that we are less than two weeks away from a Donald Trump Presidency there are millions of undocumented foreign citizens in America who fear being deported or 'removed' (the technical term for deportation that's existed since 1996). Based on my years of experience as an immigration lawyer I have some tips that help if you or one of your loved ones ranks among the "undocumented."

1. "Keep a low profile!" The sheer number of undocumented individuals in America means that everyone cannot be deported overnight. U.S. Immigration and Customs Enforcement (ICE) must set enforcement priorities, even if its ranks are greatly increased next year. For any undocumented individual, the first task is not to become an enforcement priority.

This means, above all, staying out of trouble with the law. Driving without a license, driving while intoxicated, getting involved in a domestic argument where someone calls the police are all surefire ways to attract the attention of local law enforcement who, in turn, have the discretion to check a person's immigration status and call ICE to pick them up. Use common sense in your daily life and stay out of trouble.

2. Avoid unnecessary travel especially near the border areas and ports of entry. Use of public transportation can be risky, especially if you are traveling near the border with Mexico or Canada. There is a special enforcement group in US "Customs and Border Protection" (CBP) that looks for the undocumented up to 100 miles from the border. And airports throughout the United States, particularly if they serve as major hubs and ports of entry, should also be avoided.

3. If you are afraid of returning to your home country, say so! If you have reasons to fear returning to your country of origin, be vocal about it to immigration officials even if you have an existing order of removal or deportation. The United States has treaty obligations that prevent it from sending foreign citizens home if they have "credible" or "reasonable" fears of physical harm, loss of liberty, or government-sanctioned torture back home. It is true that a person's fears of returning must meet certain tests of their own, but ICE has an obligation to refer people who express fear returning home to U.S. Asylum Officer for an interview to determine if the fears meet the test. If they do, you may have a chance of having your case heard in immigration court, even if you have a prior order of removal. And, if your fear is based on recent events, you can file an affirmative asylum claim even if you've been here for years.

4. If you are a victim of U.S. crime, say so! If you have been a victim of a serious crime in America, and you have information that may be helpful to local law enforcement in prosecuting the crime, speak up! Countless undocumented individuals who aid local law enforcement may be eligible to apply for what's known as a "U" visa. This may allow you to remain in the United States, and in some cases even become a permanent resident, regardless of your current immigration status.

5. Cancellation of removal: the great shield. There is an enormous amount of misinformation out there about the so-called "10 year rule" that allows some foreign citizens to obtain green cards in immigration court because of family relationships. Here in a nutshell, are the five requirements for relief.

A. You must be undocumented in the United States for 10 solid years and be able to prove it with things like records and tax returns.

B. You must be a person of "good moral character" which includes in most cases filing federal income tax returns over the last 10 years.

C. You cannot have been convicted of a so-called "crime involving moral turpitude" or "CIMT." This is a technical term; not all offenses are CIMT's. For example, a simple DWI is not a CIMT in most states.

D. You must have a qualifying "immediate relative," who is a spouse, parent or child under 21 years of age. What qualifies the immediate relative is his or her status as a green card holder or U.S. citizen.

E. Finally, you must be able to demonstrate in court that if you are removed qualifying immediate relative will suffer "exceptional and extremely unusual hardship" if you are removed.

It is important to remember that you can only claim "cancellation of removal" defensively, as a shield and not affirmatively, as a sword. You can't simply march into an ICE office make the claim. You have to wait for ICE or some other immigration office to come after you.

Brian O'Neill

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