Deportation Defense

What You Need to Know About Potential Deportation Defenses

In 2023, the U.S. Immigration and Customs Enforcement (ICE) deported more than 142,000 immigrants, almost double the number from 2022. When undocumented immigrants face removal or deportation proceedings, it’s a stressful and anxiety-ridden process.

For immigrants facing removal from the United States, they will typically appear before an immigration judge. Many immigrants cannot afford an attorney to represent them. However, having an attorney’s help during this process is key to whether or not you’re deported.

Keep reading to learn 11 potential defenses to deportation or removal and why engaging an attorney is critical to helping you win your case.

What Is Deportation or Removal?

For the most part, deportation and removal mean the same thing, even though technical differences between the two exist. Although “removal” is the legal term, you will often hear people use deportation or removal interchangeably. Throughout this article, we’ll use both terms.

The deportation process involved three phases:

• Initiating the deportation (or removal) proceedings;
• Issuing a deportation (or removal) order;
• Deporting or removing you from the United States.

What Is a Deportation or Removal Proceeding?

Deportation or removal proceedings are held before an immigration judge, who will determine whether you can stay in the United States. These proceedings begin when the government alleges that you don’t have a valid immigration status or you’ve done something to threaten your immigration status, such as committing a crime.

Removal proceedings begin when a U.S. immigration official from the Department of Homeland Security (DHS) files a Notice to Appear with the immigration court, which includes the reasons why you should no longer stay in the United States while also stating that you have the right to an attorney.

The government must prove all of its removal allegations to the immigration judge. If you don’t appear in front of the immigration judge at the appropriate time, the immigration judge will more than likely rule in favor of the government, granting its request to deport you from the United States.

The initial hearing before the immigration judge is called a “master calendar” hearing. At this hearing, you must admit or deny the reasons for deportation brought against you by the government. You can also assert any defenses to removal or deportation while filing any petitions or applications for relief from removal, such as adjustment of status or asylum.  Your attorney can accompany you to this hearing.

After the master calendar hearing, the immigration judge schedules an “individual calendar” or “merits” hearing. The individual calendar hearing is longer and more involved than the master calendar hearing.  At the individual calendar hearing, the immigration judge will review evidence and hear testimony and legal arguments. This is where it’s critical to have legal representation.  An experienced immigration attorney can help you defend against removal when presenting your case.

Who Can Be Deported or Removed from the United States?

Generally, the government can bring deportation or removal proceedings against:

• Anyone in the United States illegally;
• Anyone in the United States on a visa or other temporary status if their authorization expires or they violate their immigration status.

Some common causes for removal include:

• Marriage fraud;
• Violation of Green Card status;
• Commission of a crime;
• Firearms offenses;
• Staying longer than your visa permits;
• Living in the United States without legal immigration status;
• Entering the United States illegally;
• Terrorism.

How Do I Know If I’m in Deportation or Removal Proceedings?

If you’ve received a Notice to Appear, you are more than likely in deportation or removal proceedings. You can check on the status of your case through the Executive Office for Immigration Review (EOIR) website. Once there, you can enter your Alien Registration Number (your “A-Number”) to check for any scheduled court dates or other pending removal proceedings.

12 Potential Defenses to Deportation

Deportation and removal proceedings can be overwhelming. But, don’t give up hope. An attorney can help defend against your deportation with one of the following 12 defenses:

1. Adjustment of Status

The adjustment of status process permits those who enter the United States on a temporary visa (such as a student visa) to apply for lawful permanent residency without leaving the United States. This means that you can obtain your Green Card without returning to your home country while your lawful permanent residency application is processed.

However, adjustment of status processes can also be used during removal and deportation proceedings.

When facing removal or deportation proceedings, you can adjust your status based on your relationship (such as marriage) to a U.S. citizen or lawful permanent resident by filing Form I-130, Petition for Alien Relative as well as Form I-485, Application to Register Permanent Residence or Adjust Status.

2. Asylum

You may also be eligible for asylum based on your race, religion, political opinions, nationality, or membership in particular social groups. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act expanded these protections to include individuals who are forced to undergo forced sterilization, abort a pregnancy, or who have been prosecuted for failing to comply with other forms of coercive population control.

When filing for asylum, you must prove that you have suffered persecution in your country of origin or nationality.  You may also seek protection if you fear you will suffer persecution if you return to your home country.

If asylum is granted, then your deportation proceedings will stop, and you can enjoy work authorizations, get a Green Card, and eventually apply for U.S. citizenship.

3. Convention Against Torture

Similar to asylum, the Convention Against Torture (CAT) is another form of protection given to immigrants who fear torture in their home country.

If an asylum officer finds that your fear is credible, then the United States Citizenship and Immigration Services (USCIS) may consider your eligibility for withholding of removal and protection under CAT and then Issue a notice to appear before an immigration judge who will then consider any claims under CAT.

If an asylum officer approves your CAT application, then your removal proceedings cease, and you will not be returned to your home country. However, CAT does not lead to lawful permanent resident status or U.S. citizenship.

If an asylum officer finds that you do not have a credible fear of persecution or torture, typically, there is no appeal or review of that determination. However, you should contact a qualified immigration attorney to see what other options you may have.

4. Cancellation of Removal

You may also apply for cancellation of removal. Approximately 4,000 people are granted cancellation of removal annually.

Depending on your situation, you may qualify for cancellation of removal if:

• Your U.S. citizen or lawful permanent family member (such as your spouse, child, or parent) would suffer hardship if you were made to leave the United States;
• You have not been convicted of any serious crimes;
• You are a person of “good moral character”;
• If you’re a lawful permanent resident, you must demonstrate that you have lived in the United States for seven years while having your lawful permanent resident status for at least five years. If you are not a lawful permanent resident, you must demonstrate that you have lived in the United States for 10 years.

However, the process for cancellation is long. It could take years for an immigration judge to hear your case. An experienced immigration attorney can help you navigate this process.

If you are granted cancellation of removal, then you are eligible to obtain a Green Card (or lawful permanent residence).

5. Cancellation Under the Violence Against Women Act (VAWA)

Similar to cancellation for removal, you may also be eligible for cancellation under the Violence Against Women Act (VAWA). The VAWA protects women and children from losing their immigration status in the United States if they have been victims of domestic violence or extreme cruelty – helping to keep them safe away from their abuser.  However, the VAWA doesn’t just protect women.  The VAWA also protects male domestic abuse survivors.

To apply for cancellation under the VAWA, you must demonstrate the following:

• You have a qualifying relationship as the:
  • Spouse, former spouse, or intended spouse of a U.S. citizen or lawful permanent resident who has abused you if:
    • You are married to the U.S. citizen or lawful permanent resident abuser (and you entered the marriage in good faith and not to evade immigration laws);
    • You divorced the abuser (because of the abuse), or your abuser spouse (U.S. citizen spouses only) died within two years of you filing your VAWA self-petition;
    • Your abuser spouse lost citizenship or permanent resident status within two years of you filing your VAWA self-petition (because of a domestic violence incident);
    • You believed that you were legally married to your U.S. citizen or permanent resident abuser, but the marriage was fraudulent because of your spouse’s bigamy.
  • Child of an abusive U.S. citizen or lawful permanent resident parent; or
  • Parent of an abusive daughter or son who is aged 21 or older.
• You experienced “extreme cruelty” or battery by your U.S. citizen or lawful permanent resident abuser during your qualifying relationship. Extreme cruelty includes emotional and psychological abuse, such as verbal abuse or harassment, as well as threats resulting in mental harm. Physical abuse is not necessary.
• You are living with (or have lived with) your abusive U.S. citizen or lawful permanent relative.
• You are a “person of good moral character.”

6. Withholding of Removal

Withholding of removal is another defense that you may use against deportation or removal if you may face significant likelihood of persecution in your home country. If you are granted withholding of removal, you are protected from being deported.

Although this is similar to the asylum defense, withholding of removal does not permit you to work in or travel outside of the United States. Additionally, unlike asylum, withholding of removal does not provide a path to lawful permanent residency or citizenship.

7. Immigration and Nationality Act (INA) 212(h) Waivers

The Immigration and Nationality Act (INA) provides for waivers of certain inadmissible crimes under Section 212(h) (often called “212(h) waivers”). If you cannot gain legal immigration status because of criminal convictions, you can apply for a 212(h) waiver, providing a deportation defense.

To be granted a waiver, you’ll need to prove that:

• The criminal activity occurred more than 15 years ago (before you applied for legal entry into the United States);
• You are not a threat to national security;
• You have been rehabilitated.

Applying for these waivers is complex. Consulting with an experienced immigration attorney can often be the best course of action to help assess your eligibility and success for these waivers.

8. Deferred Action

You can also enter into an agreement with the government to put your case on hold, “deferring” any action on your removal or deportation and allowing you to remain in the United States during the deferral.

Deferred actions are granted on a case-by-case basis by the U.S. government’s attorneys but can only be granted if you’re not in removal proceedings or have a final removal order. Typically, you must prove that you would face some sort of hardship if you are removed, such as if you are taking care of an ill child or other family member.

Deferred actions are often granted for two-year periods, but the U.S. government can renew or terminate the deferred action at any time. Additionally, deferred actions don’t provide a path for lawful permanent residency or U.S. citizenship.

9. Stays of Removal

Similarly, you may choose to pursue a stay of removal, allowing you to postpone removal or deportation while you and your attorney pursue motions to consider or appeal the immigration court’s decision.

A stay may also be pursued if you need additional time to prepare for your eventual departure from the United States after a removal order is finalized.

10. Motions to Dismiss, Reopen, Reconsider, or Suppress

As mentioned above, you may choose to file various motions challenging an immigration court’s final decision on your removal or deportation. Some examples of motions may include motions to dismiss, reopen, reconsider, or suppress. These motions can highlight mistakes in the government’s evidence, share new evidence, or clarify the law and legal procedures.

For example, a motion to suppress may ask the judge to exclude certain evidence used by the government’s attorneys that may violate your rights under the U.S. Constitution or other federal law.  A motion to reconsider may ask the judge to reconsider his or her decision based on an incorrect interpretation of the law or evidence – or both.

Because there are certain time limits that apply to the filing of these motions, it’s critical to work with a qualified immigration attorney to ensure that these court documents are filed timely while asserting strong arguments on your behalf.