How to Avoid Deportation
Our deportation defense lawyers have over 50 years of experience winning cases for our clients in the Immigration Courts in Los Angeles and across the U.S.
Attorney Carl Shusterman served an INS Trial Attorney until 1982. He and deportation defense lawyers Elif Keles and Amy Prokop have extensive experience representing clients in Immigration Courts across the U.S.
Over 300,000 persons are currently in deportation (removal) proceedings before an Immigration Judge. It is the government’s burden to establish that they are removable from the United States by clear, convincing and unequivocal evidence.
If the government meets its burden, you will have an opportunity to apply for any and all forms of relief from removal that you may be eligible for. Common forms of relief include adjustment of status, waivers of inadmissibility and removability, cancellation of removal, adjustment of status, asylum, withholding of removal, the Convention Against Torture, legalization and registry.
If an Immigration Judge denies your case, you have 30 days to appeal the decision to the Board of Immigration Appeals (BIA). If the BIA denies your appeal, you may be able to challenge this denial in the U.S. Federal Court of Appeals having jurisdication over your case.
We hope that this page helps you understand your rights if you are in removal proceedings.
How to Avoid Deportation is divided into the following sections:
- Waivers of Inadmissibility and Removal;
- Cancellation of Removal for Permanent Residents;
- Cancellation of Removal for Non-Permanent Residents;
- Suspension of Deportation;
- Adjustment of Status to Permanent Residence;
- Asylum and Withholding of Removal;
- Legalization and Registry; and
- Voluntary Departure.
“I can honestly say that Mr. Carl Shusterman and his team are probably the best in the business when it comes to immigration matters. Carl’s greatest asset is his prior work experience as a former INS prosecutor. My family and I were on the verge of being deported from the United States. Because of Carl’s expertise and dedication, not only are we allowed to remain in this country permanently but are on path of obtaining citizenship…” (More client reviews…)
The immigration law enumerates various grounds by which an alien in the U.S. may be subject to removal from the U.S. A common ground of removability provides that an alien may be subject to removal if he was inadmissible when he entered the U.S. There are many grounds of removability found in the law.
Eligibility for waivers of removability depends upon the alien’s ability to establish hardship to himself or to his close family members if he were to be removed from the U.S. For example, a person who has committed fraud or a material misrepresentation may apply for a waiver under §212(i) if the failure to admit him to the U.S. would result in “extreme hardship” to his lawful permanent resident (LPR) or U.S. citizen (USC) spouse or parents. Similarly, a person who is inadmissible on certain criminal grounds may be eligible for a waiver under §212(h) if the failure to admit him to the U.S. would result in “extreme hardship” to his LPR or USC spouse, parent(s), son(s) or daughter(s).
Certain types of waivers such as relief for long-term permanent residents under section 212(c) do not require that the permanent resident have relatives in the U.S. although the presence of such relatives is definitely a positive factor.
CANCELLATION OF REMOVAL FOR PERMANENT RESIDENTS
INA §240A(a) allows the Attorney General (usually an Immigration Judge or the Board of Immigration Appeals) to cancel the removal of a lawful permanent resident from the U.S. if:
- He has been an LPR for a minimum of five years;
- He has resided continuously in the U.S. for a minimum of seven years after being admitted to the U.S. in any status (prior to the institution of removal proceedings);
- He has not been convicted of an aggravated felony;
- He is not inadmissible from the U.S. on security grounds.
The following classes of persons are ineligible for cancellation of removal:(1) Certain crewmen; (2) Exchange visitors (in “J” status) who received medical training in the U.S.; (3) Persons who have persecuted others; (4) Persons who have previously been granted cancellation of removal, suspension of deportation (See below.) or relief under §212(c); and (5) Persons who committed certain criminal offenses prior to the accrual of the required seven years.
Positive factors include: (1) Family ties within the U.S.; (2) Long time residency in the U.S.; (3) Hardship to person and immediate family; (4) Service in U.S. Armed Forces; (5) Employment history; (6) Ownership of property and business ties; (7) Service to the community; (8) Rehabilitation (if criminal record exists); and (9) Good moral character.
CANCELLATION OF REMOVAL FOR NON-PERMANENT RESIDENTS
INA §240A(b) allows the Attorney General (usually an Immigration Judge or the Board of Immigration Appeals) to cancel the removal of a non-permanent resident from the U.S. who:
- Has been physically present in the U.S. for a continuous period of ten years prior to the institution of removal proceedings. (This requirement is not applicable to persons who have served a minimum of 24 months in the U.S. Armed Forces, was present in the U.S. during his enlistment or induction, and is either serving honorably or has received an honorable discharge.) “Continuous” means that the person can not be out of the U.S. for more than 90 days at a time, or 180 days in the aggregate, during the ten-year period.
- Has been a person of good moral character for ten years;
- Is not inadmissible under §212(a)(2) or (3) (criminal and security grounds) or deportable under §237(a)(1)(G) (marriage fraud), (2) (criminal grounds), (3) (failure to register and falsification of documents) or (4) (security and related grounds).
- Whose removal would result in exceptional and extremely unusual hardship to his/her spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
Special relaxed rules for cancellation of removal apply to battered spouses and children.
SUSPENSION OF DEPORTATION
Any expulsion proceedings commenced on or after April 1, 1997 are removal proceedings rather than deportation or exclusion proceedings.
However, 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.
A deportable alien may apply for permanent residence through suspension of deportation if he is able to fulfill the following 3 conditions:
- He must have been continuously physically present in the U.S. for at least seven years. Absences which are “brief, casual and innocent” do not interrupt the continuity of the alien’s physical presence.
- He must be a person of good moral character.
- It must be an extreme hardship upon the alien, or his spouse, children or parents who are citizens or residents of the United States if he were forced to leave the country.
ADJUSTMENT OF STATUS
A deportable alien who is the parent, spouse, widow or child of a U.S. citizen may be eligible to apply to the Judge to adjust his status to that of a lawful permanent resident. Also qualified to apply for adjustment of status are many aliens whose priority dates for permanent residence are “current”.
Aliens who obtained conditional permanent residence based upon their marriage, or the marriage of their alien parent, to a U.S. citizen may have their legal status terminated by the USCIS if they fail to meet certain requirements. However, once USCIS places them under deportation proceedings, they may renew their applications for permanent residence before an Immigration Judge.
ASYLUM AND WITHHOLDING OF REMOVAL
Persons who have a well-founded fear of persecution from the government of their country (or from a group that the government is unable to control) if they return to their home country may apply for asylum if their fear is based on one of more of the following grounds:
- Political opinion
- Religious belief
- Membership in a particular social group
If a person is granted asylum, after one year they may apply for permanent resident status.
Withholding of removal is similar to asylum. However, it differs in 3 important respects: (1) It does not permit the person to apply for permanent residence; (2) it only prohibits the USCIS from deporting the person to one particular country and (3) the standard is higher for applying for withholding than it is for asylum.
LEGALIZATION AND REGISTRY
Once an illegal alien has been found qualified for legalization or “amnesty” by the USCIS, the deportation hearing will typically be closed since the alien will have attained the legal right to remain in the United States.
Registry is another means of attaining lawful permanent residence in the United States. It is available to aliens who have resided continuously in the U.S. since prior to January 1, 1972, who are persons of good moral character, who are not deportable on certain aggravated grounds, and who are not ineligible to citizenship.
Finally, if there is no other relief from deportation, most aliens are eligible for, and should apply for, voluntary departure from the United States. This avoids both the stigma and the legal impediments to return to the United States imposed by deportation.
Voluntary departure is available to aliens who are not deportable on aggravated grounds, who have the means to pay for their departure from the U.S., who agree to depart within a period of time granted by the Immigration Judge, and who can establish good moral character during the previous five-year period.
All forms of relief from deportation, except withholding of deportation, may be granted at the discretion of an Immigration Judge. Final orders of an Immigration Judge may be appealed to the Board of Immigration Appeals, and in certain cases to the appropriate U.S. Court of Appeals.