Removals, also known as deportations, are one of the most serious consequences that people can face in the U.S. immigration system. They can mean being separated from your family, being sent to a place that is unsafe and unfamiliar, or being unable to return to your home after being removed from the United States.
And the threat of deportation grew stronger in recent years, as immigration enforcement agencies such as ICE and CBP stepped up their policing of immigrant communities under the Trump Administration.
The good news is that there are a number of ways to fight removal proceedings in immigration court and prevent yourself or your family member from being removed.
Studies show that having legal representation in immigration court significantly increases an individual’s chance of success. For example, detained immigrants who have legal representation are 4 times as likely to be released as those who don’t have an attorney.
At Pelton + Balducci, our New Orleans deportation defense attorneys have decades of experience representing clients in the U.S. immigration system. Here’s our breakdown on how to defend yourself in removal proceedings.
The process for fighting deportation proceedings in Immigration Court
If the Department of Homeland Security (DHS) has referred your case for removal or deportation proceedings, you should receive a Notice To Appear (NTA) in the mail at least 10 days before your first scheduled hearing.
In the meantime, it is recommended that you seek legal assistance to strategize legal defenses in your case.
Some of the most common reasons that DHS refers people to immigration court are criminal convictions and unauthorized presence in the United States, which includes entries without authorization, visa overstays, and benefits application denials.
But it’s important to note that if the factual allegations or the charge of inadmissibility or removability in your NTA are incorrect, or if the service of the NTA is improper, you could potentially have your deportation proceedings thrown out.
Careful scrutiny and legal analysis of your NTA and the development of a strategy are essential from the very outset of your proceedings.
It’s important to remember that you have certain rights in this situation:
- You have the right to a hearing: If you are living in the United States and you receive an NTA, you have the right to appear before an immigration judge and present your defense before being deported. The exception is if you are stopped at an airport or a border checkpoint while trying to enter the United States with false documents or no documents at all. In those instances, you can be removed from the country without a hearing.
- You have the right to an attorney: You have the right to legal representation in a deportation case. Unlike in the criminal system, however, the immigration system will not provide you with a public defender free of charge. You will need to hire a lawyer on your own or, if that is not possible, you may seek pro bono or low-cost attorney from a non-profit legal services organization. There are some free and low-cost immigration legal services around the country.
- You have the right to an interpreter: You are entitled to a government-provided interpreter in the language of your choice. Where possible, it is also helpful to work with a lawyer who speaks your language. This includes interpreters in dialects and in indigenous languages. For example, if you are Central American and speak an indigenous language better than Spanish, you have the right to an interpreter in your native language.
- You have the right to appeal your decision: If you present your defense and the judge still orders that you be removed from the country, you may file an appeal to the Board of Immigration Appeals (BIA), the nationwide appellate court for immigration cases. In some situations, the BIA will reverse the judge’s decision or remand the case back to the judge with specific instructions. Further appeals to Federal Court or motions to reopen or reconsider may be other options. Talk to your attorney about your best path forward if you do not prevail in your case before the Immigration Judge.
Common defenses in immigration court
If you’ve reviewed your NTA and all of DHS’s allegations and charges are correct, there are still a number of ways you can fight your deportation in court. Most of these involve requesting relief from removal, which will allow you to remain in the country legally.
Here are some of the most common defenses against deportation that you and your attorney can use in immigration court:
- Termination due to defective NTA: As noted above, a defect in your NTA may require termination of your proceedings. If this happens, it means that the government has not made an adequate showing that you are removable, and the case stops. However, termination does not confer any immigration status or benefit such as work authorization.
- Adjustment of status: If you are eligible to become a lawful permanent resident, usually via a family-based petition, you can apply for an “adjustment of status.” This will change your status to that of a lawful permanent resident and prevent your removal.
- Inadmissibility waivers or cancellation of removal: Due to unlawful presence, alleged fraud or criminal issues, some people are placed in removal proceedings. Depending on the allegation or convictions involved, some individuals in court can apply for an inadmissibility waiver or a form of relief called cancellation of removal. There are specific requirements that you need to meet in order to be eligible for these remedies, such as demonstrating that you have lived in the U.S. for a certain number of years, that a close family member will suffer hardship upon your removal, and that your “good behavior” outweighs any offenses.
- Asylum: If you fear returning to your home country because of persecution, you can apply for asylum in the U.S. This would require proving to the judge that you have been persecuted or you have reason to believe you will be persecuted on political, religious, ethnic, or other protected grounds.
- U-Visa: If you have been the victim of a violent crime and you have assisted law enforcement with the reporting, investigation or prosecution of a crime, you can apply for a U-Visa. A pending U-Visa should halt your deportation and eventually lead to a green card.
- Special Immigrant Juvenile Status (SIJS) or Violence Against Women Act (VAWA): Certain minors can apply for Special Immigrant Juvenile Status (SIJS) due to abandonment, abuse, or neglect by one or both of their parents. Individuals who have suffered from abuse or extreme cruelty by certain family members may also qualify for relief under the Violence Against Women Act (VAWA), if the abuser is a lawful permanent resident or U.S. citizen.
- Voluntary departure: If none of the above defenses work for you, your last resort will be voluntary departure. If you meet the requirements, the court will give you a certain amount of time to leave the country of your own accord. The benefit of this is that there won’t be a formal removal action on your record, which in some cases makes returning to the United States in the future much easier. However, you should never accept a voluntary departure if you do not intend to timely depart because this situation results in a penalty that is actually worse than simply receiving a removal order.
Contact a Louisiana immigration attorney
At Pelton + Balducci, we make it our business to advocate for you and your family and make sure that you can reach the stable living situation in the United States that you are seeking. Our team has decades of experience defending individuals in removal proceedings, and we have successfully helped clients throughout Louisiana and the surrounding area keep their families together here in the U.S. Contact us today to schedule a consultation and discuss your case.