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Defending a Deportation and Removal Order

Article written by Attorney Kevin O'Flaherty
Updated on
April 9, 2020

In this article, we discuss deportation versus inadmissibility, common reasons for inadmissibility and deportation, defenses to deportation, and the removal process.

The risk of deportation is a very real and very frightening possibility for a number of immigrants in the United States. Facing removal proceedings can be frustrating and confusing, especially since it is likely the first exposure many may have with the US justice system. Removal is a process by which the government attempts to remove a non-citizen from the United States and place her in her country of origin or another country that will accept her. However, an order for deportation doesn’t guarantee removal. An alien who is subject to removal proceedings has certain rights that if properly defended can prevent deportation.

A person may find herself in removal proceedings because she has been declared deport-able or inadmissible according to the federal government. While deportation and inadmissibility cases are lumped into the same removal proceedings process, the defense against one versus the other can be very different. This is why deportation and removal law can become very complex and frustrating. Having a qualified attorney on your side can greatly increase your chances of avoiding deportation and removal.

Deportation Versus Inadmissibility

In general, deportation deals with non citizens who were legally admitted to the United States, while inadmissibility exists to remove non citizens who are seeking permanent resident status in the United States, trying to get into the US or those who entered the US but were somehow not “admitted.” For example, a non citizen may have a minor criminal charge that would flag her as inadmissible, but it would not trigger any ground for deportation. In this scenario, it would be advisable that the client not leave the United States until she becomes a US citizen or finds a means to negate her inadmissibility.

Common Reasons For Deportation

  • Is in violation of non-immigrant status or violated condition of entry into the US;
  • Helped another alien enter the US illegally;
  • Convicted a criminal offense that triggers deportation or inadmissibility;
  • Engages or has engaged in any activity or group that endangers others or creates a national security risk;
  • Committed marriage fraud in order to gain access to the US;
  • Falsified documents in order to get into the US;
  • Filed to terminate a conditional permanent residence status;

Common Defenses Against Deportation and Inadmissibility

  • Family-Based Adjustment of Status - If you married a US citizen, have a child who is a US citizen and 21 one years or older, or if you have a US citizen who is a parent you can apply for permanent residence status in the US ( a green card) and avoid deportation;
  • Renew Form I-751 Removal of Conditional Release;
  • Criminal Waivers - This can be a defense to deportation if you were not convicted of an aggravated felony. You must also meet a few other immigration criteria, including having been a permanent resident (green card) for 5 years and lived continuously in the US for 7 years (including the 5 years as a green card holder);
  • Noncriminal Waivers - Deals with waivers for non-felonies and noncriminal convicted immigrants;
  • Violence Against Women Act (VAWA) Cancellation of Removal - Protects victims of violence (typically women and children) who face deportation due to issues with their spouse or parent who is the legal reason for being in the US.
  • Motions to Suppress Due to Violation of Due Process;
  • Motions to Terminate Due to Incorrect Charges;
  • U-visas for victims of crimes who are helpful in the investigation of the crime;
  • Asylum, Withholding of Removal and Relief Under The Convention Against Torture Act;
  • Voluntary Departure in lieu of having an official order of removal from the court - This option can keep your immigration record clean from an order for removal. Having a prior order for removal can make getting back into the US difficult.

There are a number of other deportation and inadmissibility defenses available and finding one that applies to your situation is key in avoiding a removal order. A qualified immigration attorney will determine the best option for your situation and can guide you through the defense process.

The Removal Process

  1. A notification to appear is issued by Immigration and Customs Enforcement. This notice contains general information about the immigrant and also lists the legal basis for deportation and removal. 
  2. A Master Hearing is scheduled, but if at the hearing the affected party needs more time to secure an attorney an extension will be granted. 
  3. Once an attorney is secured, or the affected party decides to proceed without one, the judge will ask the immigrant to confirm the contents of the notification.
  4. The judge will rule on the validity of the deportation notice. If the judge decides the deportation notice is merited, the immigrant can then raise a defense against the order.
  5. At the individual hearing, the immigrant will make her defense, including bringing any witnesses forward for testimony. At the end of the individual hearing, the judge will make her ruling on the case.
  6. If the judge rules in favor of the removal then the immigrant has 30 days to file an appeal.

If you have any questions about the deportation and removal process or if you or a loved one has been issued a deportation notice, don’t hesitate to give us a call at 630-324-6666.

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