Contrary to popular belief, there are numerous ways to stop removal (deportation) in immigration court.
In this article our California criminal and immigration lawyers discuss 15 of the best ways to fight deportation.
Some of these "defenses" to deportation have very technical requirements. Our California immigration lawyers offer free consultations to discuss which may apply in your particular case.
- 1. You were not properly served with a Notice to Appear
- 2. You are not removable (deportable) as charged
- 3. Adjustment of status from nonimmigrant to immigrant
- 4. Asylum and "withholding of removal"
- 4.1. Who qualifies for asylum in the U.S.?
- 4.2. What is withholding of removal?
- 4.3. The legal meaning of "particularly serious crime" in immigration law
- 5. CAT protection for aliens who face torture
- 6. "Cancellation of removal" and adjustment of status
- 6.1. Cancellation of removal for permanent residents
- 6.2. Cancellation of removal based on extreme hardship to family members
- 6.3. Cancellation of removal for battered spouses or children
- 6.4. Positive factors favoring Cancellation of Removal
- 6.5. Negative factors weighing against Cancellation of Removal
- 7. Adjustment of status with 212(h) waiver
- 7.1. 212(h) waiver based on 15 years rehabilitation
- 7.2. 212(h) waiver based on extreme hardship
- 7.3. 212(h) waiver for abused spouse or child
- 8. NACARA 203 suspension of deportation
- 9. 212(c) waiver
- 10. 601a provisional unlawful presence waiver
- 11. Voluntary Departure
- 12. DACA/”Dreamer” deferred action
- 13. Prosecutorial discretion
- 14. “T” or “U” visa
- 15. Private immigration bill
It is a defense to removal proceedings if there was a defect in the Notice to Appear in immigration court. Such defects can include:
- The Notice was sent to the wrong address, or
- The Notice was sent only to the immigrant's attorney and not to the immigrant.
The DHS has the burden of proving that an immigrant is subject to either mandatory or discretionary (optional) deportation. Reasons an alien might not be deported include (but are not limited to):
- The immigrant is actually a U.S. citizen;
- The immigrant's criminal record is ambiguous as to whether the crime meets the definition of a deportable crime or an inadmissible crime; or
- The Department of Homeland Security did not correctly apply the legal precedents.
And even when an alien is deportable, mandatory or discretionary relief from removal may be available.
Let's take a look at the relief an immigrant facing deportation might be able to obtain.
A common reason for aliens to end up in immigration court is failure to get their paperwork in order. For instance, some people who are in the U.S. on visas -- such as an F-1 student visa -- may have forgotten to extend them.
In such a case, as long as the alien lawfully entered the U.S., the immigration judge can adjust his or her status to being lawfully present.
Asylum is discretionary relief. It can be desirable as people who are granted the asylum can eventually earn a green card.
Withholding of removal is mandatory relief. However, it is harder to get and confers fewer benefits.
Let's take a closer look at these two closely related forms of relief.
Aliens qualify for asylum if they can prove they have been persecuted in the past or that they have a “well-founded fear of persecution” in their country based on:
- political opinion,
- nationality, or
- membership in a particular social group (such as being gay).
Asylum relief is discretionary and must generally be applied for within one year of arriving in the U.S. It carries many benefits including:
- The right to work in the U.S.;
- The right to eventually obtain lawful permanent resident status (a "green card") or become a U.S. citizen;
- The grant covers the immigrant's spouse and minor children if they are present in the U.S.; and
- The right to travel internationally.
You are not eligible for asylum, however, if you were convicted of a “particularly serious crime” (as discussed in section 4.3, below).1
A grant of asylum does not expire. But it may be terminated if:
- The U.S. government determines that your fear of persecution is no longer well-founded because of a fundamental change in circumstances in your country, or
- You commit a crime that makes you inadmissible to the U.S.
Withholding of removal is similar to asylum relief but has two significant advantages:
- It does not carry a 1-year limitation on requesting it, and
- The judge must grant withholding if the applicant meets the qualifications.
But it requires a higher showing of danger than an asylum application. To obtain withholding of removal the alien must show a "clear probability" of future persecution if returned his or her home country.
As with asylum, you are not eligible for withholding of removal if you have been convicted of a "particularly serious crime.”
Additionally, withholding of removal does not let an immigrant do any of the following:
- Become a legal permanent resident or U.S. citizen;
- Travel internationally, or
- Petition for derivative status for immediate relatives.
Immigrants facing deportation cannot get asylum or withholding of removal if they have committed a “particularly serious crime.”
Unfortunately, this term is not clearly defined under U.S. immigration law.
But a conviction for one or more aggravated felonies in California always counts as a serious crime. Conviction of just one offense in this category will make an alien ineligible for asylum. The alien will also be ineligible for withholding of removal if he or she was sentenced to a total of 5 years or more for one or more crimes considered an aggravated felony.
Other crimes may also be considered particularly serious, depending on “the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the conviction.”2
Crimes against people are more likely to be categorized as “particularly serious” than crimes against property. This is especially true when a crime involves the use of or threat of force or violence.3
Drug crimes (other than simple possession of small amounts of drugs for personal use) are also frequently considered serious crimes for purposes of determining whether to grant asylum or withholding of removal.
Aliens who would face torture if returned home may be entitled to mandatory relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT").
Under CAT, the U.S. government cannot return you to a country where it is "more likely than not" that you would face torture by:
- The country's government, or
- A group the government is unable to control (for instance, ISIS).
CAT protection offers fewer benefits than asylum. Notably, it does not prevent the U.S. government from removing you to a safe third country if one is willing to take you.
The good news is that you must be granted the broadest relief for which you are eligible. So it is often best to apply for asylum, withholding of removal and CAT protection at the same time.
Cancellation of removal is another discretionary form of relief from deportation.4 It is available to people who have lived in the U.S. lawfully for many years and have strong ties to the community.
The specific qualifications depend on whether or not the alien is:
- A lawful permanent resident / green card holder,
- A non-permanent resident, or
- A battered spouse or child.
These specific qualifications for each of these categories are discussed below. But in each of these cases, the immigrant needs to show that he or she deserves to stay in the U.S.
In deciding whether to “cancel” removal, the court will look to whether the alien's “positive” factors outweigh the “negative” ones (as discussed in sections 6.4. and 6.5, below).
For a lawful permanent resident (LPR) to qualify for cancellation of removal, the LPR must show that:
- The resident has had a green card for at least five years;
- The resident has lived in the U.S. continuously for 7 years; and
- The resident has no aggravated felony convictions.
If granted cancellation, the immigrant will be permitted to remain in the U.S. as an LPR.
Non-permanent residents may qualify for cancellation of removal if deportation would result in hardship to a close family member who is a U.S. citizen or green card holder.
Specifically, the immigrant must show that:
- The immigrant has been physically present in the U.S. for 10 years or more;
- Deportation would cause "exceptional and extremely unusual hardship" to a spouse, parent or child (a "qualifying relative") who is a U.S. citizen or green card holder;
- The immigrant has been a person of good moral character for the entire 10-year period; and
- The immigrant was not convicted of an “inadmissible crime.”
Note that the mere economic difficulties do not count as "exceptional and extremely unusual hardship.”
The hardship the family member would experiences must be substantially worse than what would normally expected from moving to an underdeveloped country – for instance, unavailability of adequate medical care to treat a serious illness.
If granted cancellation of removal, non-citizens will have their status adjusted to legal and receive a green card.
However, immigration judges can approve just 4,000 cancellation applications from non-permanent residents nationwide per year.5 If the cap has been reached before you file your application, you will have to wait until a slot becomes available again.
A special form of cancellation of removal is available under the Violence Against Women Act (VAWA).6
VAWA cancellation of removal allows certain people of either sex who are victims of battery or extreme cruelty to remain in the U.S.
To qualify for VAWA relief, the victim, must be able to prove that:
- The abuser is U.S. citizen or green card holder;
- The victim has been physically present in the U.S. for a continuous period of 3 years,
- The victim is of good moral character,
- The victim is not inadmissible to the U.S., and
- The victim would suffer extreme hardship if not allowed to remain in the U.S.
Positive factors that weigh in favor of cancellation of removal include:
- Strong family ties in the U.S.;
- Residence of long duration in the U.S., especially when begun at an early age;
- Likelihood of hardship to the immigrant's family if the immigrant is deported;
- Evidence of rehabilitation (if the alien has a criminal record);
- Evidence of good moral character;
- U.S. military service;
- Strong employment history;
- Business ties;
- Ownership of property in the U.S.; or
- Community service.
Factors that may make a court deny Cancellation of Removal include:
- A criminal record (particularly of recent and/or serious crimes); and
- Other significant violations of immigration laws; and
- Evidence of bad moral character.
Permanent lawful residents (green card holders) who are being deported for certain types of criminal convictions may be able to get a discretionary waiver and adjust their status back to lawful.
The basis for this type of waiver is set forth in Section 212(h) of the Immigration and Nationality Act ("INA"). Accordingly it is known as a “212(h) waiver.”
The crimes that can be waived under 212(h) are:
- Crimes involving moral turpitude ("CIMT");
- Multiple convictions for 2 or more offenses with total sentences of 5 years or more;
- Prostitution and prostitution-related offenses;
- Serious criminal activity where immunity from prosecution was asserted; or
- A single offense for simple possession 30 grams or less of marijuana.
Aggravated felonies and crimes involving murder or torture (including attempt or conspiracy to commit either) cannot be waived.
To be eligible for 212(h) relief, the alien:
- Must have resided continuously in the U.S. for 7 years,
- Not have been convicted of an aggravated felony, and
- Not have been convicted of murder or criminal acts involving torture (or attempt or conspiracy to commit such crimes).
The alien must also fall into one of the following categories:
- The alien has been rehabilitated for 15 years;
- A close relative who is a U.S. citizen or green card holder would suffer extreme hardship if the alien was deported; or
- The alien has been the victim of domestic violence by a U.S. citizen or green card holder.
Let's take a closer look at each of these 212(h) situations.
To obtain a 15-year 212(h) waiver, an immigrant must establish that:
- The activities for which the alien is inadmissible occurred more than 15 years ago;
- Allowing the alien to remain in the country would not be contrary to the national welfare, safety, or security of the U.S.; and
- The alien has been rehabilitated.
Extreme hardship waivers are the most common type of 212(h) waiver. They can be granted to an alien when removal would result in extreme hardship to a spouse, parent, son or daughter who is a U.S. citizen or lawful permanent resident (green card holder).
Factors the judge will consider include:
- The relative's family ties inside and outside the U.S.;
- Conditions in the alien's home country;
- The financial impact of departure from the U.S.; and
- The availability of suitable medical care for the relative in the country to which the alien would relocate.
A 212(h) waiver may be granted to an alien who has suffered abuse by a U.S. citizen or green card holder who is or was the alien's spouse, child or parent. This form of waiver may also be available to people whose child was abused by their spouse.
To qualify, the alien must be of good moral character and must have resided with the abuser.
212(h) waivers are just one form of relief that may be available to an immigrant who was a victim of abuse.
If you are a victim of abuse who is facing immigration consequences of a criminal conviction, talk to your California immigration lawyer to make sure you apply for all available relief.
The Nicaraguan Adjustment and Central American Relief Act, or “NACARA,” was a law allowing asylees from El Salvador, Guatemala, Cuba and former Soviet bloc countries to suspend deportation proceedings against them.
Relief under the original act applied generally to refugees from these countries who:
- Entered the U.S. before 1991,
- Filed timely for asylum, and
- If Guatemalan or Salvadoran, registered for benefits under the terms of the class action settlement agreed to in American Baptist Churches v. Thornburgh ("ABC Settlement Agreement").
The precise cutoff date for NACARA relief varies by country. You can find the cutoff dates for NACARA relief on the US Citizenship and Immigration Services website.
Immigrants are not generally eligible for NACARA 203 relief if they were convicted of an aggravated felony.
But people who have been battered or subjected to extreme cruelty may, nevertheless be eligible under NACARA 203.
If you meet these general eligibility requirements, the judge will then determine whether you qualify for relief. You must show all of the following in order to be granted relief under NACARA:
- Continuous physical presence in the United States for either:
- 7 years (if you have no criminal record); or
- 10 years (with a criminal record);
- Good moral character during that time period;
- No aggravated felony conviction(s), unless you are a battered spouse or child;
- That your deportation or removal would result in extreme hardship to you or to your spouse, child, or parent who is a U.S. citizen or permanent resident; and
- That you deserve the benefit.
If granted, NACARA Suspension of Deportation gives you lawful permanent resident status (a green card) in the United States.
Your spouse and children (if in the U.S.) will be able to remain here as well.
Lawful permanent residents who pled guilty to, or were convicted of crime before April 1, 1997 may be eligible for discretionary relief under former section 212(c) of the Immigration and Nationality Act.
Requirements for a 212c waiver include:
- The immigrant pled guilty before April 1, 1997;
- The immigrant has been a lawful permanent resident for at least 5 years;
- If the immigrant was briefly out of the country, he or she is returning to a lawful, unrelinquished residence of at least 7 consecutive years;
- The immigrant is not subject to deportation based on acts of terrorism or national security concerns;
- The immigrant is not in the U.S. unlawfully due to a prior immigration offense;
- The immigrant was not convicted of a firearms offense affecting immigration or an aggravated felony offense(s) with a total sentence or sentences of 5 years or more; and
- If convicted after April 24, 1996, the immigrant was not convicted of any aggravated felony or drug offense.
Assuming you meet these qualifications, the judge will weigh the positive and negative factors in your application (as set forth above in the section on cancellation of removal).
The judge will look closely at the balance of positive factors versus negative factors in your application
In the event you are granted 212(c) relief, you will once again become an LPR and your green card and passport will be returned to you.
People who are in the U.S. unlawfully may be able to fight deportation with a "601a provisional unlawful presence waiver."
To qualify for a 601a waiver, the immigrant must be able to prove that:
- The immigrant is married to a U.S. citizen or lawful permanent resident;
- Deportation would result in hardship to the immigrant's spouse or children; and
- The immigrant's only violation is unlawful presence (calculated from the day the person entered unlawfully or from the day his or her lawful status expired).
If the judge grants the 601a waiver, the immigrant will receive a provisional waiver of inadmissibility to the U.S. The immigrant will still need to leave the U.S. and have an immigrant visa interview at a U.S. Embassy or consulate.
But it means the immigrant will spend less time away from his or her family before obtaining a IR1 or CR1 spousal visa.
Voluntary departure keeps an alien from having a record of deportation. An alien who is deported will have a harder time returning to the U.S. lawfully and will face much stiffer penalties for illegal re-entry – 20 years in U.S. prison instead of 2 years.
Thus in a worst-case scenario, an alien who is likely to be deported may be able to request voluntary departure to avoid these consequences.
An alien who leaves the U.S. voluntarily will also have more time to get his or her affairs in order before he/she must leave – either 60 or 120 days, as compared to the usual 30 days following a deportation order.
Deferred action for childhood arrivals ("DACA") is program of discretionary relief that allows immigrants who were brought to the United States as children to apply for:
- Two years' protection from deportation (removal), and
- A work permit.
Aliens eligible for deferred action are those who:
- Entered the U.S. before age 16;
- Have resided continually in the U.S. since June 15, 2010;
- Were physically present in the U.S. on June 15, 2012;
- Are enrolled in school, have graduated or earned a GED or other high school equivalency certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States, and
- Have not been convicted of a serious crime or involved in serious criminal activity.
Deferred action does not provide immigrants with a green card or path to citizenship. But it does allow an immigration prosecutor to defer removal action so that the immigrant can remain in the U.S. for a while.
As with criminal charges, government prosecutors have broad “prosecutorial discretion” to “dismiss” certain deportation cases – albeit with conditions.
Benefits granted in cases of prosecutorial discretion are often limited. The government may grant specific rights – such as the right to work – but not others.
There are no hard and fast rules about when prosecutors can exercise their discretion but it is more likely when your removal proceedings are not the result of a criminal conviction.
“T” and “U” visas are available to victims of human trafficking or serious crimes such as domestic violence or sexual assault who cooperate with U.S. law enforcement to investigate and prosecute the crime(s).
“T” visas are available to immigrants facing deportation if:
- They are in the U.S. as the result of human trafficking, and
- Their removal from the U.S. would result in “extreme hardship involving unusual and extreme harm.”
People who were already in the U.S. when they became victims of a serious crime can apply for a “U” visa. U visa applicants must prove that they suffered “substantial physical or mental abuse” as a result of the crime.
“T” and “U” visas allow eligible victims to remain and work in the U.S. temporarily – usually for four years. Provided certain additional conditions are met, the visa holder may apply for a green card after three years.
“T” and “U” visas are non-immigrant visas, which means they do not guarantee permanent legal status. However, people with a T or U visa may later be able to apply for a green card to adjust their status to permanent.
Private immigration bills can be introduced by any member of Congress to prevent an alien or group of aliens from deportation. They are generally a last resort for immigrants who have exhausted all other remedies.
Typically private immigration bills are passed only when “extreme hardship” to the immigrants or their immediate families would otherwise result. Immigrants with any criminal history are not eligible.
If Congress passes the bill and the president signs them, the named individual(s) are allowed to remain in the U.S. and will receive a “green card.”
In the past, an alien would typically receive a stay of removal (temporary halt in deportation proceedings) while a private bill was pending. But under the Trump administration, this has become increasingly unlikely.
Nevertheless, a private bill may be a worthwhile last-ditch effort if all else fails in cases of visa overstays or similar violations by people with strong ties to the community.
Worried about deportation? Call us for help…
If you or someone you know has been arrested by U.S. Customs and Immigration Enforcement ("ICE") or is in removal proceedings we invite you to contact our California immigration lawyers for a free consultation.
Our California criminal defense lawyers can also defend you against California criminal charges that can lead to deportation.
To schedule your free consultation call us at (855) LAWFIRM or fill out the form on this page.
If you were detained in Nevada, please contact our Nevada immigration lawyers.
- Immigration and Naturalization Act ("INA") 241(b)(3)(B)(ii).
- See Matter of L-S-, 22 I&N Dec. 645 (BIA 1999).
- See, e.g., Matter of NAM-,24 I; Matter of S-V-, 22 I (BIA 2000), overruled on other grounds Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003).
- INA 240A.
- Same, subparagraph (e).
- 42 USC 13925 and subsequent sections.