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. Being ordered to appear in immigration court is definitely scary, but it also gives you a chance to present a defense in front of an immigration judge. You might even be able to ask for forms of relief that aren't available outside the courtroom.

Here, we will discuss:

  • possible ways to dispute the DHS's allegations and keep your current immigration status
  • legal grounds upon which to remain in the U.S. despite the DHS's allegations ("relief from removal"), and
  • if you aren't able to remain legally 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 from the United States? Broadly speaking, the most likely reasons include criminal convictions and unauthorized presence in the United States. First, however, 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.

Can You Dispute Any of the DHS Allegations?

Even assuming the allegations made by DHS 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 bases upon which the DHS alleges removability are that the person committed a:

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

  • the crime does not fall into either of those two 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 within U.S. immigration and by U.S. federal courts. That's because the crimes themselves rarely carry these labels. It's a matter of matching state criminal law to these federal definitions. Thus it might be possible to show that a crime does not match the particular category claimed by the DHS, perhaps by carefully examining the language of the state statute, or setting forth the facts and circumstances surrounding the offense and the arrest.

For example, you might be able to show that no violence was involved in the crime on your record, 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. Because of the complexity of these issues, you would be well served to consult with an immigration attorney who is also experienced in criminal law matters.

Do You Have a Basis Upon Which to Request 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 surely 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 United States. Some people might 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 being granted one or more of these forms of relief requires collecting extensive 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 basic 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 potentially 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, and that the persecution came from the government of your home country or forces beyond its control, because of one of five protected grounds: your race, religion, political opinion, nationality, or membership in a particular social group.

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

The Final 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 the United States, on your own. In other words, you would arrange for and pay for your own travel, within a set time.

Leaving the U.S. in this manner typically has fewer legal 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, with 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.

Appealing a DHS Removal Order

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 Should Hire a Lawyer to Represent You in Immigration Court

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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