What Are the Defenses Against Deportation?

In U.S. immigration law, individuals facing deportation may present legal arguments or applications known as defenses against deportation. These defenses arise during removal proceedings, which are legal processes used by the government to determine whether a foreign national should be removed from the United States.

Various forms of immigration relief may allow an individual to remain in the country even if the government alleges that they are removable under immigration law.

What deportation defenses mean in immigration law

Deportation, also referred to as removal proceedings, is the legal process in which the government seeks to remove a foreign national from the United States.

Removal proceedings usually begin when the government issues a Notice to Appear (NTA). The NTA contains:

• The government’s factual allegations
• The legal charges of removability
• Instructions to appear before an immigration court

During these proceedings, a person may present legal defenses or apply for immigration relief, which are forms of protection that may allow them to remain in the United States.

An individual described as undocumented generally refers to someone who does not currently have lawful immigration status in the country.

Common forms of relief from deportation

Several types of immigration relief may be raised as defenses against deportation during removal proceedings.

Challenging the charge of removability

One possible defense is to contest the government’s allegations.

This may involve:

• Challenging the evidence presented by the government
• Arguing that the legal charges of removability are incorrect

If the government cannot meet its burden of proof, the case may be dismissed.

Cancellation of removal

Cancellation of removal is available in two general categories:

For lawful permanent residents (LPRs)

• The person must have been a lawful permanent resident for at least five years
• Must have lived continuously in the U.S. for seven years after lawful admission
• Must not have certain aggravated felony convictions

For non–lawful permanent residents

Requirements generally include:

• 10 years of continuous physical presence in the United States
• Demonstrating good moral character
• Showing that removal would cause exceptional and extremely unusual hardship to a qualifying relative who is a U.S. citizen or lawful permanent resident

Asylum

Asylum may be available for individuals who have experienced persecution or fear persecution in their home country based on:

• Race
• Religion
• Nationality
• Political opinion
• Membership in a particular social group

Withholding of removal

Withholding of removal is similar to asylum but requires a higher standard of proof. Applicants must demonstrate that it is more likely than not that they would face persecution in their home country.

Protection under the Convention Against Torture (CAT)

Protection under the Convention Against Torture (CAT) may apply when an individual can show that it is more likely than not that they would be tortured by their home government or with the government’s consent or acquiescence.

Adjustment of status

Adjustment of status allows a person to apply for lawful permanent residence (a green card) while already in the United States.

In many cases, this option requires:

• A legal entry into the United States
• An approved immigration visa, often based on family or employment

Additional forms of immigration relief

Other possible defenses may include:

• Waivers for certain criminal or non-criminal grounds (such as 212(c), 212(h), or EOIR-42A waivers)
• U Visa, available to victims of certain crimes who assist law enforcement
• Violence Against Women Act (VAWA) protections for victims of domestic abuse
• Temporary Protected Status (TPS) for nationals of certain countries experiencing extraordinary conditions
• Special Immigrant Juvenile Status (SIJS) for minors who were abused, abandoned, or neglected

In some situations, the government may also exercise prosecutorial discretion, which may involve closing or declining to pursue a deportation case.

Another form of temporary relief is deferred action, where immigration authorities choose not to pursue removal for a certain period.

Voluntary departure

Voluntary departure allows a person to leave the United States at their own expense within a specified time period rather than receiving a formal deportation order.

This option may reduce some of the legal consequences associated with a formal removal order.

Role of immigration court in deportation defense

Immigration court is the forum where removal proceedings are conducted and where deportation defenses are presented.

Responsibilities of the immigration judge

An immigration judge (IJ) performs several functions during these proceedings, including:

• Asking the individual to admit or deny the allegations in the Notice to Appear
• Determining whether the government has proven removability
• Explaining potential forms of immigration relief
• Reviewing evidence and evaluating the credibility of the individual

The judge may also assess factors such as:

• Family ties in the United States
• Length of residence in the country
• Other relevant circumstances

If the government fails to prove that the person is removable, the immigration judge may terminate the proceedings.

General eligibility considerations for immigration relief

Eligibility for many forms of immigration relief depends on meeting specific legal requirements.

Examples include:

• Continuous physical presence requirements for cancellation of removal
• Demonstrating good moral character
• Showing a well-founded fear of persecution for asylum
• Proving it is more likely than not that persecution or torture will occur for withholding of removal or CAT protection
• Meeting eligibility requirements for adjustment of status, including lawful entry and an approved visa

The immigration judge evaluates the evidence presented to determine whether the individual qualifies for the requested relief.

Important limitations or misunderstandings

There are several legal limitations that may affect deportation defenses.

Credibility requirements

Providing false information to an immigration judge can significantly affect a person’s credibility and may undermine eligibility for immigration relief.

Limited benefits of certain protections

Some forms of protection, such as withholding of removal or CAT protection, do not provide a pathway to permanent residency or citizenship.

Temporary forms of protection

Programs such as:

• Prosecutorial discretion
• Deferred action
• Temporary Protected Status (TPS)

generally provide temporary relief and do not create permanent immigration status.

Criminal history restrictions

Certain criminal convictions may disqualify individuals from forms of immigration relief, including:

• Cancellation of removal
• Prosecutorial discretion
• Deferred action programs

Risk of expedited removal

In certain circumstances, if a case is closed because the government failed to prove removability, immigration authorities may attempt expedited removal, particularly if the individual has been in the United States for less than two years.

Appeal deadlines

Recent changes to immigration rules have shortened the deadlines for filing appeals after an unfavorable decision from an immigration judge.

Immigration rules vary by individual circumstances

The availability of defenses against deportation often depends on the facts of each case.

Important factors may include:

• Immigration history
• Criminal record
• Family relationships in the United States
• Length of residence in the country
• Evidence presented during removal proceedings

Because immigration law includes many different legal categories and requirements, eligibility for immigration relief may vary from one individual to another.

Key takeaways

• Removal proceedings begin when the government issues a Notice to Appear.
• Deportation defenses often involve applying for immigration relief during immigration court proceedings.
• Possible forms of relief include asylum, cancellation of removal, adjustment of status, and other legal protections.
• Immigration judges evaluate the evidence and determine whether an individual qualifies for relief.
• Some protections are temporary and do not create permanent immigration status.
• Criminal convictions or missing legal deadlines may limit eligibility for certain defenses.

Final thoughts

Defenses against deportation are typically raised during removal proceedings in immigration court. These defenses may involve challenging the government’s allegations or applying for specific forms of immigration relief that allow an individual to remain in the United States under certain legal conditions.

Individuals seeking clarification about deportation defenses or removal proceedings may consult a qualified immigration law firm such as AB Legal Consult to better understand how immigration laws may apply to their situation.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Immigration laws and procedures may change, and individual circumstances may affect legal outcomes. Individuals seeking legal guidance should consult a qualified immigration professional.