How to Win a Deportation case: The truth about your case
12 December 2013Author: New York Deportation Lawyer Alena Shautsova
When you or a loved one has been placed into deportation proceedings it is important to understand that remorse and responsibility for your actions coupled with rehabilitation alone is not enough to win your deportation case. That being said, there needs to be a legal basis for your stay in the US, and as every case is in fact unique, it is important to consult with an attorney and it is never recommended that you attempt to defend yourself pro se in deportation proceedings as this area of law is extremely complex and requires an expert immigration attorney for success.
The most common categories of deportation proceedings arise from: Undocumented Aliens
This is also one of the most commonly confused by the undocumented alien or family members. They came to the country without inspection or through an illegal method and now they are in deportation proceedings, there is nothing you can do, right? Not necessarily! Undocumented aliens will still qualify for certain defenses against deportation which include and in rare cases are not limited to:
1. Incorrectly charged with removability.
- This is a common defense however only temporary, as being an undocumented alien will most likely constitute that you are eligible for deportation or removal proceedings. This defense places the burden on the Department of Homeland Security (DHS) to prove you are removable under the specific citation DHS has charged you with.
- To have this granted you must deny all allegations at your first immigration hearing and contest any and all charges of removability. However this does not mean that you lie to the Immigration Judge at your hearing, if you are found untruthful in most cases you will lose any and all rights that you may have in the US.
- If denied you may still apply for other grounds for defense against deportation or removal. This defense is usually used when you have another defense to back it up however you do not qualify for the defense yet, i.e. Child under the age of 21 has a few months to turn 21.
2. Adjustment of status under I.N.A. (Immigration and Nationality act) Section 245 or 245(i) Usually you will have to enter the US legally to adjust your status under INA, however there are some exceptions.
3. Adjustment of status through “registry” under I.N.A. Section 249
4. Asylum: This is one of the most complex defense against removal, many times the question our clients have is if they can still file for asylum after the one year deadline. The answer is yes if country conditions have changed or extraordinary circumstances prevent you from filing in the first place. There are some other exceptions, and consultation with an attorney is needed to determine if the application will be successful. Please see
5. Withholding of Removal : when country conditions have changed but you do not qualify for asylum due to the technicalities, you may apply for withholding of removal. The standard of proof is high in this case, but if granted, the relief will allow you to stat and live in the US. Please see
6. Protection under the Convention Against Torture (CAT): You may apply if when you are more likely than not to be tortured (not persecuted) upon return to your home country. Please see
7. Cancellation of removal for persons who are not lawful permanent residents: You can apply for it when you can prove you have resided in the country for over 10 (ten) years and your removal will result in extreme hardship to a US citizen spouse, parent or child. Please see
8. Cancellation under the Violence Against Women Act (VAWA): Contrary to the name of the act, men too can apply for this relief from deportation. In order to qualify, you must have physically present in the US for a minimum of 3 (three) years and have been battered or subjected to extreme cruelty by your US citizen spouse, parent, or child. Please see
NACARA special rule cancellation:
- Only nationals of certain countries qualify for this type of relief which include nationals from Guatemala, El Salvador, and former Soviet bloc. It is only available when A Guatemalan who first entered the United States on or before October 1, 1990 (ABC class member); registered for ABC benefits on or before December 31, 1991; applied for asylum on or before January 3, 1995; and was not apprehended at time of entry after December 19, 1990. For more information on ABC benefits, see the “American Baptist Churches v. Thornburgh (ABC) Settlement Agreement to the right.
- A Salvadoran who first entered the United States on or before September 19, 1990 (ABC class member); registered for ABC benefits on or before October 31, 1991 (either directly or by applying for Temporary Protected Status (TPS)); applied for asylum on or before February 16, 1996; and was not apprehended at time of entry after December 19, 1990.
- A Guatemalan or Salvadoran who filed an application for asylum on or before April 1, 1990 and have not received a final decision on your asylum application.
- An individual who entered the United States on or before December 31, 1990; applied for asylum on or before December 31, 1991; and at the time of filing the application was from one of the former Soviet bloc countries (Soviet Union, Russia, any republic of the former Soviet Union, Latvia, Lithuania, Estonia, Albania, Bulgaria, Czechoslovakia, East Germany, Hungary, Poland, Romania, Yugoslavia, or any state of the former Yugoslavia).
This special cancelation is similar to regular cancellation of removal, except: The physical presence must be for 7 years before the date of application; and Extreme hardship can be placed on the deportee, meaning if there is a hardship to the person him/herself, they will still qualify for this special rule cancellation of removal.
10. Suspension of deportation: persons who were placed in deportation proceedings prior to April 1, 1997 as well as NACARA applicants may still be eligible for suspension of deportation.
11. Deferred action for Childhood arrivals (DACA): This is a new defense the US government agreed upon that allows children who were brought to the country through no fault of their own to avoid deportation. Commonly referred as DREAM act. Please see
12. Prosecutorial discretion. This relief is applicable when there are no other options, but you have a pretty strong case of favorable discretion on behalf of the DHS or ICE. There are no set rules to qualify for this relief. There is an ICE MEMO specifying the parameters for prosecutorial discretion. Please see
13. Private Bills: This is when laws are passed by the congress to help a specific immigrant. It is not a common relief, but it is realistic in case of certain circumstances. This type of relief requires "extremely sympathetic" circumstances and should be your last resort when defending against deportation/removal.
14. Voluntary Departure. If all of the above fails, voluntary departure might be an option. Please see