Deportation Defense

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The Law Office of Karen Winston offers aggressive and compassionate deportation defense for our clients in removal proceedings. “Removal” is the legal term used for deportation. When the U.S. Department of Homeland Security (DHS) seeks to deport a person from the U.S., they issue a “Notice to Appear” (NTA) alleging what criminal act or immigration violation was committed. If you or a loved one receives a notice to appear, you should contact our office right away.

There are several defenses to deportation that may be available to you. At the Law Office of Karen Winston, we will explore every potential option to helping you or your loved one remain in the United States. A critical part of our job as immigration attorneys representing persons before the Immigration Courts and Board of Immigration Appeals, is that we are storytellers. From our initial case strategy session, we will develop the theory of your case and determine the best way to present your unique facts to the Court. Below are the most common defenses to deportation applied for in Immigration Court. These are the basic requirements one must meet in order to be eligible. Getting to know the client’s unique details, preparing the case strategy, gathering all of the evidence, and presenting the case to the Court are equally as important to the outcome.

Some common deportation defenses include:

Asylum, Withholding of Removal, and protection under the U.N. Convention Against Torture (CAT)

Asylum-  Asylum is a type of protection for people who have fled persecution or fear future persecution in their home country, which allows legal status in the U.S., a work permit, and eventually a green card.

Withholding of removal- Like asylum in many ways, withholding is more difficult to obtain because you must prove that it is “more likely than not” that you will be persecuted in your home country if removed from the U.S. Withholding provides fewer benefits than asylum because recipients are usually ineligible to apply for permanent residence or travel outside of the United States. However, a person who gets withholding can stay in the U.S. and can get work authorization.

Protection under the Convention Against Torture (CAT)- Protection under CAT is available only if it is “more likely than not” that your home country’s government — or some person or group the government cannot control — will torture you if you must return. Unlike asylum and withholding of removal, to receive protection under CAT it does not matter why you would be tortured; that it is likely that you would be tortured would be enough. CAT is also like withholding in that persons who receive CAT protection cannot ever get permanent residence or travel internationally. CAT recipients may apply for permission to work in the United States.

Cancellation of Removal

There are several types of “cancellation” each with their own special requirements:

10 Year Cancellation of Removal/Cancellation for Certain Non-Lawful Permanent Residents

A deportation defense that will result in a “green card” if you win your case. The basic requirements for 10 year cancellation include that:

  1. You have been “continuously physically present” in the U.S. for at least ten years;
  2. Your deportation from the U.S. would cause “exceptional and extremely unusual hardship” to your U.S. Citizen or Lawful Permanent Resident “qualifying relatives”;
  3. You can show that you have “good moral character”; and
  4. You have not been convicted of certain crimes or violated certain laws.

7 Year Cancellation/Lawful Permanent Resident (LPR) Cancellation of Removal

A deportation defense for Lawful Permanent Residents. The basic requirements for LPR Cancellation include that:

  1. You must have been an LPR for five years at the time the application is filed;
  2. You must have continuous residence in the U.S. for at least seven years after being admitted in any status and before the stop-time rule is triggered; and
  3. You cannot have been convicted of an aggravated felony.

NACARA Cancellation

Section 203 of the Nicaraguan Adjustment and Central American Relief Act (“NACARA”) provides that certain nationals from Guatemala, El Salvador, and former Soviet bloc countries are eligible to apply for suspension of deportation or special rule cancellation of removal. Whether an applicant is eligible to apply for suspension of deportation or special rule cancellation depends on when they were placed in deportation proceedings. An applicant who is granted suspension of deportation or cancellation of removal under NACARA may adjust his or her status to that of a lawful permanent resident.

The basic requirements for NACARA Cancellation or suspension of deportation include that:

  1. You have been physically present in the U.S. for a continuous period of seven years immediately preceding the date the application was filed;
  2. You have been a person of good moral character during the required period of continuous presence; and
  3. Your removal from the U.S. would result in extreme hardship to you, or your spouse, parent, or child who is a U.S. Citizen or a lawful permanent resident.

Violence Against Women Act (VAWA) Cancellation

VAWA cancellation of removal is designed to keep victims of abusive U.S. Citizen or lawful permanent resident spouses or parents from being deported. It is a form of relief that a noncitizen victim can seek in immigration court after being placed in removal proceedings. Successful cancellation of removal results in lawful permanent resident status for the victim.

The requirements for VAWA Cancellation are:

  1. the applicant was battered or subjected to extreme cruelty by a U.S.-citizen or LPR spouse or parent;
  2. the applicant can demonstrate physical presence in the United States for 3 years;
  3. the applicant can demonstrate good moral character;
  4. the applicant can show that removal would cause extreme hardship; and 
  5. that certain inadmissibility grounds do not apply or that he or she qualifies for a waiver of inadmissibility.

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