Defending a Deportation Case in Immigration Court

If you have received a Notice to Appear (NTA) from the Department of Homeland Security (DHS) alleging that you are removable (deportable) from the U.S., do not assume that the situation is hopeless.

If you have received a Notice to Appear (NTA) from the Department of Homeland Security (DHS) alleging that you are removable (deportable) from the U.S., do not assume that the situation is hopeless. If you have been ordered to appear in immigration court, you will have a chance to present a defense in front of an immigration judge. There are some options available that might help you.

Here we will discuss:

  • possible ways to dispute the DHS's allegations and keep your current status
  • legal grounds to remain in the U.S. despite the DHS's allegations (“relief from removal”), and
  • if you aren't able to remain in the U.S., ways to reduce the consequences of being removed (most likely through "voluntary departure").

Examine the DHS's Allegations in the Notice to Appear

Why does DHS want to remove you? The most likely reasons include criminal convictions and unauthorized presence in the United States. First, it’s important to realize that DHS sometimes makes mistakes, so examine the allegations listed in the NTA closely.

For example, is your date and method of entry into the U.S. listed correctly? Is DHS alleging that you committed a crime? If so, is the crime classified correctly? These are all important questions when preparing to fight back against allegations against you.

Even assuming the allegations are basically true, you might still be able to dispute certain aspects of them, depending on the reason you are charged with being deportable. For example, two common crimes for which the DHS alleges removability are:

If the NTA charges you with one of these types of crimes and deems you removable for the offense, you can challenge that, perhaps by arguing that:

  • the crime does not fall into either of those categories (which are, after all, a matter of definition) and thus, you are not actually removable, or
  • despite the crime falling into the alleged category, it does not constitute grounds for removal (most likely in a case involving a crime of moral turpitude).

What actually constitutes a crime involving moral turpitude or an aggravated felony is a matter of ongoing discussion in U.S. immigration and federal courts. It might be possible to show that a crime does not fit into the particular category claimed by the DHS by setting forth the facts and circumstances surrounding the crime and the arrest.

For example, you might be able to show that no violence was involved in the crime and that therefore it should not be called an aggravated felony. Likewise, there are limited exceptions to removability for crimes involving moral turpitude. The key is to know what those exceptions are and to present them to the immigration judge.

However, because of the complexity of these issues, you would be well served to consult with an immigration attorney experienced in criminal matters.

Request Any Available Relief From Removal

There are several forms of relief from removal available to certain foreign nationals. Again, you must know what relief is available and then ask and present a strong case for it. Options include:

Each of these options has its own set of qualifying criteria. However, these options aren't available to everyone. If you are ultimately found to have been convicted of an aggravated felony or a crime of terrorism, you will be deported, with no relief available.

Waivers of Inadmissibility and Cancellation of Removal

A waiver of inadmissibility and/or cancellation of removal are applicable to qualifying foreign nationals charged with certain crimes as well as to those unlawfully present in the U.S. Some people may need to apply for both a waiver of inadmissibility and cancellation of removal, while others might only need to apply for cancellation of removal.

Achieving success in applying for and being granted one or more of these forms of relief, requires the collection of extension documentation and then convincing the immigration judge that not only do you qualify for the relief under the applicable immigration laws, but that you also deserve it. Even if you meet the legal requirements, granting it is at the discretion of the immigration judge.

Asylum and Withholding of Removal

Foreign nationals who fear returning to their home country can request asylum and/or withholding of removal. This requires convincing the immigration judge that you have been persecuted, reasonably fear future persecution, or (in the case of withholding of removal) will more likely than not be persecuted by the government of your home country under one of five protected grounds.

See our section on Asylum for more information on these forms of relief.

The Alternative: Voluntary Departure

If you cannot successfully dispute the DHS's allegations and have no relief from removal available to you, a final alternative to being deported is to request permission to voluntary depart.

Leaving the U.S. in this manner typically has fewer consequences than an actual order of removal. Most importantly, your record will not have a removal order on it, which leads to an automatic bar on reentry to the U.S. for a number of years, the exact number dependent upon the reason you were removed in the first place. However, you should not request voluntary departure without first ascertaining whether or not any other form of relief is available.

There are different stages of the removal process during which voluntary departure can be requested. The stage in which it is requested affects the requirements as well as how much time you will be allotted to wind up your personal affairs. For example, if you request voluntary departure at the first immigration court hearing (the "master calendar"), it is much easier to qualify for, and you will be allotted more time to depart than if you request it after your full individual court hearing has taken place.

Note: There are serious consequences if you are granted voluntary departure and then fail to comply with the terms or leave on time.

Appeal

If despite your best efforts, you are ordered removed from the U.S., and you did not request voluntary departure, you have the right to appeal to the Board of Immigration Appeals within 30 days of the immigration judge's decision. You may remain in the U.S. while the appeal is pending.

You'll Need to Hire a Lawyer

It is not possible to guide you through successfully fighting deportation through this or any other article. Immigration laws are a tangled web and the penalties for failing to fully understand and utilize them to your benefit are high. Unfortunately, immigrants facing deportation are not afforded lawyers by the government. They'll need to hire and pay for one themselves.

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