Deportation and removal defense
In the United States, “removal” is the formal legal term used in immigration law for the process of expelling a non-citizen from the country, which encompasses what is commonly referred to as “deportation.” This process is governed primarily by the Immigration and Nationality Act (INA), administered by U.S. Immigration and Customs Enforcement (ICE) under the Department of Homeland Security (DHS), and adjudicated in immigration courts overseen by the Executive Office for Immigration Review (EOIR) under the Department of Justice.
Non-citizens (including lawful permanent residents, visa holders, undocumented individuals, and others) can face removal proceedings if they violate immigration laws. Proceedings typically begin with a Notice to Appear (NTA) served by DHS, charging the individual with removability.
Common grounds for removal
Under INA § 237 and § 212, grounds include:
- Inadmissibility at entry or adjustment of status: Entering without inspection, visa fraud, or being inadmissible due to criminal convictions, health issues, or security risks.
- Violations after admission: Overstaying a visa, committing certain crimes (e.g., aggravated felonies, crimes of moral turpitude), or engaging in activities like smuggling, marriage fraud, or terrorism-related acts.
- Other bases: Unlawful presence, failure to register, or public charge concerns.
Not all violations lead to automatic removal; discretion may be exercised by DHS or immigration judges (IJs).
The removal process
- Initiation: DHS issues an NTA, outlining charges. The individual is detained or released on bond/parole.
- Master Calendar Hearing: Initial court appearance before an IJ to respond to charges (admit/deny) and schedule further hearings.
- Merits Hearing: Evidence is presented; the individual can apply for relief (defenses).
- Decision: IJ rules on removability and any relief. Appeals go to the Board of Immigration Appeals (BIA), then potentially federal courts.
- Execution: If ordered removed, ICE enforces; voluntary departure may be an option to avoid a removal order’s penalties (e.g., bars to reentry).
Proceedings must respect due process under the Fifth Amendment, including notice, a hearing, and opportunity to present evidence. However, expedited removal applies to certain arrivals at borders without full hearings.
Defenses to deportation/removal
Defenses aim to either contest removability or seek “relief from removal” (protection allowing the person to stay). Success depends on facts, evidence, and eligibility. Key defenses include:
1. Challenging removability
- Denying the charges: Argue factual errors (e.g., no criminal conviction qualifies as deportable) or legal insufficiency (e.g., DHS failed to prove alienage or violation).
- Statute of limitations: Rare, but applies in some rescission cases.
- Equitable estoppel: If government misconduct misled the individual.
2. Applications for relief from removal
These are affirmative requests; burden is on the applicant to prove eligibility.
| Relief Type | Eligibility Basics | Key Requirements | Potential Outcomes |
|---|---|---|---|
| Cancellation of Removal (INA § 240A) | Non-permanent residents: 10+ years presence, good moral character, exceptional hardship to U.S. citizen/LPR family. Lawful permanent residents (LPRs): 5+ years as LPR, 7+ years residence, no aggravated felony. | Prove hardship; annual cap of 4,000 grants. | Permanent stay; path to LPR status. |
| Adjustment of Status (INA § 245) | Eligible for immigrant visa (e.g., family/marriage-based); admissible or waivable issues. | Marriage to U.S. citizen often key; must overcome unlawful presence bars. | Grants green card, ends proceedings. |
| Asylum (INA § 208) | Persecution or well-founded fear based on race, religion, nationality, political opinion, or social group. | Apply within 1 year of arrival (exceptions apply); credible testimony. | Grants asylum; after 1 year, can adjust to LPR. |
| Withholding of Removal (INA § 241(b)(3)) | More likely than not to face persecution/torture in home country (higher burden than asylum). | No discretion if eligible; no path to LPR. | Prevents removal to that country; mandatory if qualified. |
| Convention Against Torture (CAT) Relief | Likely to be tortured by/with acquiescence of government officials. | Evidence of torture risk; no bars like criminal history apply fully. | Deferral or withholding; indefinite stay. |
| Temporary Protected Status (TPS) | Nationals of designated countries (e.g., due to war/natural disaster); timely registration. | Country-specific (e.g., Venezuela, Haiti as of 2025 designations). | Temporary work authorization; no removal during designation. |
| U Visa/T Visa | Victims of certain crimes (U) or trafficking (T) who assist law enforcement. | Certification from authorities; extreme hardship if removed. | Path to LPR; defers removal. |
| Waivers (e.g., INA § 212(h)/(i)) | For criminal or fraud grounds; show hardship or rehabilitation. | Provisional waivers available pre-departure. | Forgives grounds, allows stay/adjustment. |
3. Constitutional and procedural defenses
- Due process violations: Invalid NTA, ineffective counsel (rarely granted post-2018 Supreme Court rulings).
- Motion to Suppress: Exclude evidence obtained unlawfully (e.g., Fourth Amendment violations in arrests).
- Motion to Terminate: If no jurisdiction (e.g., U.S. citizen misclassified) or changed law (e.g., via BIA precedent like Matter of Abdelghany).
Bonds and detention
During proceedings, individuals may seek release on bond (minimum $1,500) or parole. IJs review custody; appeals to BIA. Mandatory detention applies for certain criminals.
Appeals and stays
- BIA appeal within 30 days; further to Circuit Courts (petition for review).
- Stays of removal can be requested to pause deportation during appeals.
Practical considerations
- Representation: Non-citizens have no right to free counsel, but attorneys vastly improve outcomes (per studies, represented cases win relief 3-5x more). Pro bono resources: EOIR’s list, nonprofits like ACLU or Catholic Legal Immigration Network.
- Bars to relief: Aggravated felonies or security issues bar many options; 3/10-year unlawful presence bars apply post-removal.
- Recent developments (as of 2025): Policies fluctuate; e.g., Biden admin expanded TPS/parole, while Trump-era rules (if revisited) emphasized enforcement. Check USCIS.gov for updates. Supreme Court cases like Garland v. Aleman Gonzalez (2022) limited injunctions against removal.
- Voluntary departure: Pre- or post-hearing option to leave without formal order, avoiding reentry bans (up to 10 years for removal orders).
Defenses require strong evidence (documents, witnesses) and often expert testimony. Outcomes vary by jurisdiction (e.g., higher asylum grants in San Francisco vs. Atlanta courts). For personalized advice, consult an accredited immigration attorney or BIA-recognized representative; resources at justice.gov/eoir. This is general information, not legal advice.