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Kevin O'Flaherty

This article will discuss the options available to someone facing deportation. We will answer the following questions:


  • Who is involved in deportation Proceedings?
  • How will I know if the U.S. is trying to deport me?
  • What am I responsible for when facing deportation?
  • What are my rights when facing deportation?
  • How can I avoid deportation?


Trying to figure out what to do next after receiving a Notice to Appear in immigration court isn’t easy—especially if the notice comes as a complete surprise! For many immigrants, being deported isn’t something they expect or plan for. Often, deportation is triggered because an immigrant failed to file for an extension on their green card. Others face deportation for simple crimes or clerical errors that were out of their control. Whatever your reason for facing deportation, the most critical first steps you should take are educating yourself on the process, getting an attorney, and learning what options will allow you to avoid deportation and stay in the United States.


Who is Involved in Deportation Proceedings?


Deportation proceedings involve three parties: an immigration judge, the respondent, and the Department of Homeland Security (DHS). The DHS is the primary governing body that detains, arrests, and prosecutes respondents facing deportation. The immigration judge will hear evidence and testimony from both sides and then decide if the respondent can remain in the United States or be deported to their country of origin.


How Will I Know if the U.S. is Trying to Deport Me?


Nearly all individuals facing deportation will be notified by an official “Notice to Appear” (NTA) document. An immigration agent from the DHS will serve you the NTA by hand or the NTA is mailed to your last known address. The NTA will contain a date for the respondent to appear in court before an immigration judge. The NTA will also explain what U.S. immigration the DHS believes you violated. At the first hearing, the respondent can expect the judge to explain the deportation proceedings and why the respondent faces deportation. The entire process can take upwards of ten hearings and usually no fewer than three.


What am I responsible For When Facing Deportation?


Your responsibilities as a respondent in a deportation case include:


  • Showing up to your court hearings. Failure to attend your court hearings will lead to an order of removal in your absence. Any bond money you paid is forfeited, and the DHS will issue an order for your arrest. You will then most likely be deported. That court understands that legitimate scheduling conflicts occur, but you must first get a court order with a new hearing notice. If an emergency, such as illness or an accident, prevents you from making your scheduled hearing, you must file a motion to reopen your case no later than 90 days after your hearing.
  • Keep your address up to date. Since the court will communicate primarily through mail, failure to update the court after an address change can lead to you missing a hearing or another critical piece of information.
  • Be aware of deadlines given by the court. If you fail to provide a piece of evidence, file an application, or communicate with the court by a deadline, the judge may assume you have abandoned your case and order you removed.
  • If you were detained and then released, you may have to check in periodically with your deportation officer. Failure to report to your deportation officer can result in your arrest and loss of bond money.


What Are My Rights When Facing Deportation?


Those facing deportations have some basic rights under immigration law; including:


  • The right to effective communication. You should be able to understand the directions from the judge, and the judge should be able to understand you. You have the right to an interpreter, and if you don’t understand the interpreter provided, you should immediately tell the judge.
  • The right to review evidence from DHS. Anything that the DHS offers of evidence should be made available to you, and if DHS calls any witnesses, you have the right to question those witnesses.
  • The right to present evidence and testimony. You can present any evidence that the court deems admissible, call on witnesses, and even testify as a witness.
  • The right to file an appeal with the Board of Immigration Appeals. 


How Can I Avoid Deportation?


Being served with a Notice to Appear doesn’t guarantee your deportation. You’ll have the ability to fight the potential deportation, and depending on the specifics of your situation, there may be many defenses available. While the entire list of deportation defenses is too long to describe here, we will attempt to summarize the most common. We strongly urge anyone facing deportation to review their options with a qualified attorney.


  • Simple clerical solutions to deportation orders. Sometimes defending or delaying deportation is as simple as providing evidence showing DHS made an error. Two common examples include showing that you were not adequately served with a Notice to Appear and proving that you are not removable as charged in the Notice to Appear. In both of these scenarios, unless the immigrant is a U.S. citizen, the deportation process is likely to be delayed but not completely terminated. DHS can correct the clerical error and issue a new Notice to Appear; however, there is a chance that DHS will not pursue further deportation action. Sometimes, the solution is as simple as changing your status from nonimmigrant to immigrant.
  • Seek asylum. Seeking asylum depends heavily on the respondent proving that being forced to return to their country of origin would put them at risk of violence, persecution, or extreme hardship. 
  • Cancellation of removal. Cancellation of removal is an option if the respondent meets the criteria listed under the specific cancellation option. Cancellation of removal for permanent residents, cancellation of removal for non-permanent residents, and cancellation of removal for battered spouses and children are all examples of provisions that have specific guidelines, that if met, will allow the respondent to remain in the U.S.
  • Adjustment of status and waivers. A number of waivers apply to specific reasons for deportation, such as criminal convictions, rehabilitation, extreme hardship, family violence, and unlawful presence in the United States. If the respondent can prove that they meet the requirements outlined in the waiver, they may be able to remain in the United States.


This list is not exhaustive, but it does highlight the need to seek legal counsel to assist in identifying options that may allow you to avoid deportation and stay in the United States. Deportation should not be taken likely. Failure to act quickly may result in an order of removal. If you have any questions, please give us a call.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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