How to Fight Deportation

Understanding Deportation

Read your Notice to Appear. The Notice to Appear orders you into Immigration Court because you are eligible for removal (“deportation”). When you receive your Notice to Appear, you should read it to figure out what legal grounds Department of Homeland Security (DHS) has cited for your removal. Study the Notice closely. Sometimes, DHS makes mistakes and alleges things that are not true. The first defense to deportation is to argue that the government has its facts wrong. For example, DHS may allege that you committed a crime of moral turpitude or an aggravated felony and therefore can be removed. If you did not commit either crime, then you should challenge DHS on this.

Understand what relief is available. Available relief from deportation will depend on your immigration status. For example, you may be in the United States illegally. If so, your relief will differ from those of someone who has had their green card cancelled. You should discuss all possible relief with your lawyer. Some of the more common forms of relief include: If you are in the country illegally, then you can typically request: Asylum. If you have suffered persecution (or fear future persecution) based on race, religion, nationality, political opinion, or membership in a social group in your home country, then you can seek asylum in the United States. If granted, you will be able to stay in the U.S. and will become eligible for a green card. Withholding of Removal. This relief is like asylum; however, you are not guaranteed to stay in the United States and become eligible for a green card. Nevertheless, you will not be returned to your home country if you fear persecution there. Cancellation of Removal. You can avoid removal and get a green card if you have been physically present in the United States for 10 years and your removal would cause “exceptional and extremely unusual hardship” on a spouse, parent, or child who is a citizen or permanent resident. Prosecutorial Discretion. You can ask the prosecutor to use his or her discretion not to prosecute you. There are no rules set in stone for who qualifies. Typically, however, you must have a clean criminal record. If you have had a green card but face deportation (because of convictions for certain crimes), then the following are some of the ways you can fight your deportation: Cancellation of Removal. You can apply if you have continually resided in the U.S. for at least seven years (five of which have been as a legal permanent resident) and have not been convicted of an aggravated felony. If you can prove to the judge that you deserve to stay in the country, then you can retain your green card. Waiver of Alien Smuggling. If you helped someone enter the country illegally, your green card can be cancelled. To apply for a waiver of inadmissibility, the person you helped smuggle into the U.S. must have been a family member (a spouse, parent, or child). Also, you must convince a judge that you deserve the waiver.

Understand voluntary departure. Regardless of your immigration status, you can ask for a “voluntary departure.” If granted, you will leave the country voluntarily and no order of removal will appear on your immigration records. Voluntary departure is not granted automatically, though if you ask DHS before your court proceedings start, then it may be easier to get.

Finding an Immigration Attorney

Understand why you need an attorney. Immigration law is incredibly complex. Furthermore, there are many possible forms of relief that you might request. Accordingly, you will need an expert to review the facts of your situation and advise you on the best way to fight the deportation. According to one study, non-detained immigrants with attorneys won 34 percent of their cases, while those without attorneys won 23 percent. For those non-detained immigrants seeking asylum, 39 percent won with an attorney, while only 14 percent of those won without a lawyer. Unfortunately, the government does not provide attorneys to those facing deportation. For this reason, you will have to hire your own.

Find a private attorney. You can find an experienced immigration attorney by using your state’s bar association website, which should run a referral program. Also, you can visit the American Immigration Lawyers Association’s website and perform a lawyer search. For additional tips on how to locate immigration lawyers, see Find an Immigration Lawyer.

Use the list of pro bono attorneys. In court, you will be given a list of pro bono attorneys you can contact. Should you apply for asylum, then you will be given a list of attorneys before meeting with an Asylum Officer for your screening interview.

Interview the attorney. If possible, try to find out how experienced the lawyer is in handling removal proceedings. Some immigration attorneys might only help clients in non-adversarial proceedings, such as applications for affirmative asylum or obtaining work visas for clients. You will want to make sure that the lawyer you choose has experience fighting removal proceedings. If you are being held in detention, then have a friend or family member ask questions for you. Be sure to ask how many cases like yours the lawyer has handled. Has he or she appeared before an immigration judge before? Handled appeals? How many, and when was the most recent?

Building a Case

Choose what relief to pursue. You and your lawyer should discuss what relief you seek based on the facts of your case. You may choose to immediately ask for voluntary departure, particularly if you have no other options. Or you may choose to request more than one form of relief at once. You should trust your attorney’s judgment. He or she has experience handling immigration deportation proceedings. Your lawyer may have appeared before the judge before and understands what evidence the immigration judge will find persuasive.

Gather evidence. You will probably need evidence to support your request for relief. For example, if you are seeking asylum because you have a credible fear of persecution should you return to your home country, then you will need evidence that persecution is occurring. Evidence can take many forms. For example, you might need newspaper or magazine articles, stories published on the internet, or affidavits from witnesses or experts, or photographs that show persecution against a group is happening in your country. Other forms of evidence can include doctor’s statements, journals, official documents, or personal statements/live testimony of witnesses. One reason to involve an attorney early is so that he or she can help you gather sufficient evidence to present to a judge. Although an immigration judge will listen to your testimony, any argument you make will appear more persuasive if you have independent evidence to support it. An experienced immigration attorney will know what kinds of evidence is most persuasive.

Get supporting letters. In Cancellation of Removal proceedings, letters from friends, family, employers, and faith leaders can be very helpful. These letters can serve a couple different purposes. First, they can explain how deportation will cause extreme hardship on those family members who remain in the country. Second, they attempt to convince the Immigration Judge that you “deserve” to stay in the country by pointing out your good moral character and your work ethic. For more information, see Write a Reference Letter for Immigration and Write a Letter Requesting Non Deportation of a Person.

Appearing in Court

Attend the initial hearing. This is called the “Master Hearing.” At the hearing, you will deny or admit to all of the factual allegations made against you by the government. You will also inform the judge of what relief you are seeking in order to stay in the country. Always address the judge as “Your Honor” or “Judge.” When the judge enters and exits the courtroom, you should stand. The government will provide interpreters at all hearings for those whose English does not allow them to fully understand and participate in the hearings.

Attend the individual hearing. The second step is to present your case to the Immigration Judge. It will be run like a contested hearing: opening statements, presentation and cross-examination of witnesses, and a closing statement. You should arrive early in order to give yourself plenty of time to go through mandatory screening. As the alien facing deportation, you will have the burden of showing that you qualify for the relief that you request.

Receive a decision. At the close of the hearing, the Immigration Judge will render a decision. This decision may be announced in open court. In this situation, you will be given a signed summary order. Sometimes, the judge will issue a written decision at a later date. It should be mailed to you.

Appeal, if necessary. You have the right to appeal the decision of the Immigration Judge to the Board of Immigration Appeals. You must make sure that your Notice of Appeal is received within 30 days of the judge’s oral order (if any) or within 30 days of when the judge’s written decision was mailed.

Asking for Voluntary Departure

Understand why it might help you. Although voluntary departure will not keep you in the country, it will allow you to leave without having an order of removal on your record. Without this order on your record, you may be able to re-enter the country earlier. Those who are deported are often barred from returning to the United States indefinitely or for a set amount of time (five, 10, 25 years). You also will have more time to leave. If you are ordered removed, then you must leave within 30 days. However, if you are granted a voluntary departure, then you can have either 60 or 120 days to leave. This will give you more time to tie up loose ends and get your affairs in order.

Check if you are eligible. You can make a request for voluntary departure at any time. Specifically, you can request voluntary departure before the start of removal proceedings, during removal proceedings, or at the conclusion of the proceedings. The requirements differ slightly depending on when you request voluntary removal. Pre-hearing request. You can request voluntary departure from DHS before even seeing a judge. You are not eligible if you have committed an aggravated felony or were stopped at the border. If you ask for voluntary departure, you give up your right to apply for any other form of relief. Request at the start of removal proceedings. At the master calendar hearing, you can request voluntary departure. It must be the only type of relief you request. You will have to admit that you are removable and waive the right to appeal all issues. Further, you must prove that you have not been convicted of an aggravated felony or are not deportable for national security or public safety reasons. It is also possible (though very rare) that DHS might agree at any point during the proceedings to grant voluntary departure. Request at the end of the hearing. You must meet strict requirements to request voluntary departure at the conclusion of your removal proceedings: Prove that you have been physically present in the U.S. for at least one year before you received the Notice to Appear. Have the financial resources to post a bond within five days. Prove that you have had good moral character for at least five years before seeking voluntary departure. Have no aggravated felonies or terrorist activity on your record. Produce a valid passport or other travel documents. Show that you have the financial means to leave the U.S. at your own expense. Show that you have not been granted voluntary departure previously after having been found inadmissible.

Gather necessary documents. The documents you will need depend on when you ask for voluntary departure. You should work with your attorney to gather necessary criminal records, letters to show good moral character, and a possible bond.

Leave the country as planned. If you are granted voluntary departure, then you must leave the country according to the schedule set by the judge. If you don’t, then you can face civil penalties (up to $5,000) and the voluntary departure order becomes a removal order. You also can face bars on requesting future immigration relief. Currently, a 10-year bar applies to those who do not voluntarily depart according to schedule. Accordingly, if you subsequently marry a United States citizen, you will be prevented from applying for a green card and legal permanent residence status until the 10 year period is over.