Removal Defense

If you or a loved one is arrested for violating U.S. immigration law, you will most likely be dealing with removal (deportation) proceedings. Navigating the immigration detention and court systems without a lawyer is difficult and frightening. Although anyone facing removal proceedings has the right to be represented by a lawyer, there are no "public defenders" in immigration court, meaning that it is your responsibility to hire an experienced immigration lawyer to help you.

Detention and Bond

People who are arrested by immigration authorities may be detained during the course of their deportation proceedings. People arrested in Colorado and Wyoming can be held at the regional immigration detention center in Aurora, Colorado, or at county jails that have contracts to house immigration detainees. Many people are transferred into immigration custody after completing criminal sentences, but others are encountered by Immigration and Customs Enforcement (ICE) during the course of traffic stops, workplace raids, and even appointments at the immigration office. When someone is taken into immigration detention, the first thing to figure out is whether he or she can seek release from custody.

The most common way to get out of detention is to pay an immigration bond. Bond eligibility depends on a number of factors, including criminal and immigration history. An experienced immigration attorney at the law office of Lisa E. Battan can determine bond eligibility and, when appropriate, can fight for a bond or a bond reduction in immigration court.

Defenses against Deportation

The next question to resolve is whether the person in deportation proceedings has a way to fight his or her case and remain in the United States. People who bond out of immigration detention, or who are arrested by ICE but are not detained, still must attend immigration court hearings. The first hearing in immigration court is called a "master calendar hearing." At the final immigration court hearing, called an "individual hearing," an immigration judge decides whether someone is allowed to remain in the United States. To remain in the United States, someone must be eligible for a defense against deportation, and the immigration judge must grant his or her application.

Some of the more common defenses against deportation include:

Challenging the Department of Homeland Security's Charges: The Department of Homeland Security (DHS, which is like the prosecution in immigration court) must give notice of why it is trying to deport a person by charging him or her with specific grounds of "inadmissibility" or "deportability." Sometimes a lawyer can argue that DHS' immigration charges are wrong, or that DHS cannot prove the charges, and the case must be terminated.

Cancellation of Removal: There are three different kinds of cancellation of removal - one for permanent residents, one for people who have no immigration status, and one for victims of domestic violence:

  • A "seven-year cancellation" or "LPR cancellation" gives a second chance to some lawful permanent residents who are facing deportation because of criminal convictions. To be eligible, a person must prove that he or she has been a lawful permanent resident for at least five years, has resided in the United States continuously for seven years after a lawful admission, and has not been convicted of an aggravated felony.
  • A "ten-year cancellation" provides a path to lawful permanent resident status (a "green card") for certain noncitizens who have lived in the United States for at least ten years and have qualifying family members. To win this defense, a person must prove that he or she was continuously present in the U.S. for at least 10 years before deportation proceedings started, has been a person of "good moral character" during the ten years, and has not been convicted of certain crimes. A person must also show that deportation would result in exceptional and extremely unusual hardship to a spouse, parent or child who is a U.S. citizen or lawful permanent resident.
  • "Three-year cancellation" or "VAWA cancellation" is a special form of cancellation for victims of battering or extreme cruelty. It is similar to ten-year cancellation but requires only three years of continuous presence, and has other special exceptions as well.

Adjustment of Status: This is the process of applying for a permanent residency (a "green card") on the basis of a qualifying family relationship. Even if your adjustment application was denied by USCIS, an immigration judge can review it again and has the power to approve it. Victims of domestic violence may be eligible to apply for adjustment of status under the Violence Against Women Act (VAWA) if they were abused by a U.S. citizen or permanent resident spouse or parent.

Waivers: A waiver is like a "pardon" for a crime, an immigration violation, or another problem that makes someone deportable from the United States or ineligible for permanent residence. Waivers are available for various grounds of inadmissibility and deportability, including unlawful presence (time spent living illegally in the United States), fraud and misrepresentation, and some types of criminal convictions. For almost all types of waivers, the immigration judge will balance the good things in a person's life against the seriousness of the criminal conviction or immigration violation. Many people seeking adjustment of status will need waivers in order to adjust.

Asylum/Withholding of Removal/Protection Under the Convention Against Torture (CAT): These are all forms of protection for people who have a fear of returning to their home countries. Some people may not be eligible for asylum - for example, if they have been in the United States for more than one year, or if they do not meet all the requirements - but they may still be eligible for withholding of removal or CAT deferral if they fear persecution or torture.

U Visa: U visas are for victims or certain crimes who have helped law enforcement officials with the investigation and prosecution of a crime. Even someone who is in deportation proceedings can apply for a U visa, and after winning the U visa, can apply for permanent resident status.

Voluntary Departure: This is not really a defense against deportation, but instead it is an alternative to deportation. People who have no way to fight their cases, and people who fight their cases but lose, may be eligible to ask the immigration judge for voluntary departure instead of deportation. People who win voluntary departure agree not to fight their cases anymore, to pay for their own trips home, and to leave within a certain time period. Winning voluntary departure instead of accepting deportation can make it easier to return to the United States legally in the future. An experienced immigration lawyer can advise you if you are eligible for voluntary departure, and if so, can help you convince the immigration judge that you deserve voluntary departure instead of deportation.

It is important to realize that current immigration laws are harsh and do not offer many options to some people who are facing deportation, even if they are good people who have lived in the United States for a long time. For example, many people have lived here for ten years or more, but they are not eligible for cancellation of removal because they do not have a spouse, parent or child who is a U.S. citizen or lawful permanent resident.

We will be honest and realistic with you about your options, and will work with you to achieve the best possible result in your case. Contact us to find out more.