Deportation Defense
How to stop a family member or friend from being deported
Deportation Defense
How to stop a family member or friend from being deported
What is deportation defense?
In the United States, several categories of persons are subject to deportation, or removal. This include persons who entered the U.S. without inspection, green card holders, visa overstays, violators of nonimmigrant status, and persons caught at the border.
Just because you or someone you know has been placed in deportation proceedings doesn’t mean deportation is automatic. You’ll learn on our site various ways to fight deportation, get out of immigration detention, and how to avoid it the deportation process entirely.
Why might you be placed in deportation proceedings
Persons who entered the U.S. without inspection
Persons who entered the U.S. without inspection or admission and have remained in the U.S. without authorization, are subject to deportation. They were never admitted to the United States. In order to stay here, you must seek some form of relief from deportation.
Persons who entered on a visa and never left
Most types of temporary visas are not renewable indefinitely. That means that eventually your time on the visa will run out. You can’t stay here forever.
When you remain in the U.S. beyond your authorized period of stay on the visa, you become subject to something called “deportability.” ICE, or Immigration and Customs Enforcement, then has the discretion to place you in removal proceedings. In order to remain in the U.S., you will need to apply for some sort of relief from deportation or find a way to get back into status.
Persons who violated the terms of their visa
To stay on a nonimmigrant visa you have to follow certain rules. They may relate to employment, criminal history, and the length of time you wish to reside here.
If you violate the terms of your nonimmigrant status, you become subject to deportability and can be placed by ICE in removal proceedings.
Permanent residents who have gained status by fraud or mistake or have made a false claim of citizenship
Often permanent residents got their green cards even when they were not supposed to. This includes residents who told a lie in order to adjust status, and even persons who didn’t intentionally lie but made a misstatement.
Either way, a resident who was never entitled to be admitted may be subject to deportability. Luckily, the law contains multiple waivers that can be used to preserve one’s resident status.
Permanent residents who have committed certain crimes
Residents who have committed “aggravated felonies” are deportable. The list of aggravated felonies under the immigration law is long and complicated. It includes very severe crimes like rape and murder, but also offenses ambiguous ones like crimes of violence, thefts with sentences of one year or more, money laundering, and certain firearms crimes.
Other criminal grounds of deportability include convictions for crimes involving moral turpitude within 5 years of admission and having multiple convictions for crimes involving moral turpitude.
Persons caught near the border attempting to enter illegally
Due to the recent influx of illegal border-crossers, this category of persons is high priority for immigration authorities.
If they are caught within 2 weeks of entering, and within 100 miles of the U.S.-Mexico border, they can be placed in “fast-track” or expedited removal proceedings. Under expedited proceedings, they are not permitted to see an immigration judge unless they first pass a credible fear interview. In order to pass the interview, one most convince and asylum officer that he or she has a significant possibility of establishing a claim for asylum. If the interview is passed, he or she is entitled to a full evidentiary hearing before an immigration judge.
What is the process?
Step 1: Person is placed in removal proceedings.
A person can land in removal proceedings in a number of ways and for a variety of reasons. He or she may be picked up from his home. He may picked up from jail after being arrested for a crime. He may receive a notice in the mail asking him to appear in immigration court. He or she may be arrested near the border after crossing illegally. Others may be transferred to immigration after serving a prison sentence. Some will be detained by immigration and held at an immigration jail. Others will simply be asked to show up in immigration court.
In any case, the removal process formally begins when the person is delivered what’s called a “Notice to Appear.” This is a charging document. It’s like a charging document in criminal court, except instead of accusing you of a crime, it accuses you of being subject to deportation.
Step 2: Person has a chance to see an immigration judge and respond to the charge of removability
Just like in criminal court, you typically have a chance to respond to the charge against. Whereas in criminal court you have a chance to say “guilty” or “not guilty,” in immigration court you can admit or deny the allegations and charge of removability.
Significantly, this is the first chance to fight your case. One should never assume that he or she is subject to deportation just because the immigration charging document says so. That’s like assuming that everyone charged with a crime is guilty. Likewise, there are often ways to demonstrate that ICE, or the immigration authorities, have gotten it wrong, and that you’re not supposed to be in deportation proceedings to begin with.
Here are some examples of ways that we’ve fought the charges of removability an ultimately won, without having to go a step further and apply for relief from deportation:
- Person was alleged to a be a non-citizen. We denied the allegation, arguing that he became a U.S. citizen derivatively through his father.
- Person was alleged to be deportable for crime of money laundering. We denied the charge, proving that it wasn’t an aggravated felony because the loss was under $10,000.
- Person was alleged to be inadmissible based on a crime involving moral turpitude. We denied the charge, explaining that under recent law the offense was not a crime involving moral turpitude.
- Person was alleged to have been convicted of multiple crimes involving moral turpitude. We denied the charge, arguing that he had only been convicted of a single crime involving moral turpitude.
- Person was alleged to have been inadmissible for having entered without inspection. We denied the charge, arguing that the person has automatically become a green card holder from amnesty under the Special Agricultural Worker program.
In our law practice, we never take for granted that a person is removable as charged. Conceding one’s deportability means missing out a first opportunity to win your case.
If the immigration judge agrees that you are not removable as charged, he or she is obligated to terminate your case. When a case is terminated, it’s sometimes possible for ICE to place you back in removal proceedings or to appeal the judge’s decision.
Step 3: Applying for relief from removal
If the immigration judge ultimately finds that you are removable from the United States, that still does not mean that you will be deported.
If you are eligible, you can still apply for relief from deportation. There are many types of relief, and you’ll need an experienced immigration attorney to decide if you qualify. The types of relief include:
- Withholding of removal
- Withholding and deferral of removal under the Convention Against Torture
- Cancellation of removal for non-permanent residents
- Cancellation of removal for lawful permanent residents
- Re-Adjustment of Status
- Section 212(h) criminal waiver
- Section 212(c) criminal waiver
- Prosecutorial discretion
To learn how to qualify for these types of relief, visit our page here.
The burden of proof is on the respondent. In other words, it’s up to the person in proceedings to present evidence on his or her behalf in support of these applications.
Step 4: The Immigration Judge hears all evidence at a merits, or individual, hearing, and makes a decision on whether to grant relief or order removal.
The last hearing in a removal case is often referred to as a merits, or individual, hearing. Consider this a mini-trial. It’s where you and the government get to present evidence for and against your application for relief from deportation. Before the hearing, your lawyer will present written evidence in support of your application. At the hearing, you and your attorney will present live testimony from witnesses.
After hearing the evidence, the immigration judge will decide on your application for relief.
Step 5: Appeal to the Board of Immigration Appeals
If the judge does not grant your application for relief, not all is lost. You have the right to, within 30 days, file a notice of appeal with the Board of Immigration Appeals (BIA). The BIA is simply an appellate court that sits in Falls Church, Virginia.
Appeals can take several months to be resolved. And they aren’t necessarily a chance to present all your evidence once again to someone new. Often the issues that are argued on appeal are more limited in scope than the ones resolved by the immigration judge.
Having a team of attorneys skilled in written advocacy is critical at this juncture. You won’t have a hearing before the BIA. Virtually always, arguments are made in written form.
Step 6: Appeal to the Petition for Review
Despite our law firm’s strong track record for appeals to the Board, it sometimes becomes necessary to file an additional appeal to a circuit court of appeal. The circuit courts are federal appellate courts that sit one step below the Supreme Court of the United States. These circuit courts are allowed to entertain petitions for review on some legal issues that arise before immigration courts and the Board of Immigration Appeals.
These appeals are very challenging, but winnable in our experience. Our law firm has won cases before the Fifth, Ninth, and Tenth Circuit Courts of Appeals.
If every appeal is lost, don’t lose hope. There are ways in which to reopen immigration cases, sometimes to apply for new relief or based on a fundamental change in law. Even after someone is physically deported, it is sometimes possible to bring him or her back to the United States. We have consulted with hundreds of individuals on the possibility of bringing a loved one back to the country.
Why Trust Us
We value honesty and excellence above all else.
From your very first consultation with us, you’ll see that we take the time to exhaustively learn all potentially relevant facts about your case — things that many will never bother to ask about. We will carefully explain all of your options, and based on thousands of cases we’ve handled, we’ll explain any obstacles with honesty and integrity. When we offer our services, we will make sure you understand all of the risks and benefits. For us, honesty is paramount; getting hired is not.
When we provide services, we strive for perfection in an area of the law full of costly risks and delays. Throughout your case, our attorneys, paralegals, and staff keep our clients well-informed of the progress on your case.
And when we encounter obstacles in our path, we don’t give up. Our policy is to leave no stone unturned in the quest to either fix your status or stop a deportation.
