What Are the Defenses to Removal Proceedings?
How they work and the potential for relief in Washington, D.C.By Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on May 4, 2023 Featuring practical insights from contributing attorney Ava Benach
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If you or your loved one is facing removal from the United States, you are certainly not alone. According to U.S. Immigration Customs and Enforcement (ICE), approximately 185,884 people were deported in 2020 alone.
Receiving a Notice to Appear (NTA) does not necessarily mean that an immigrant will be removed, says Ava C. Benach, an immigration attorney at Benach Collopy who primarily works out of Washington, D.C., Arlington, and Baltimore, but who represents people in immigration courts nationwide.
“These are procedures the government has initiated to seek their removal from the United States, and the government has brought charges against them,” she says. “But only the court can order a person a deported, and just because the government has charged something doesn’t mean it’s true.”
There are defenses available when you appear before a judge. If successful, you may be able to receive immigration relief—meaning deportation may be delayed or cancelled altogether.
Common Defenses in Removal Proceedings
There are a number of different defenses that can be raised in American law. Whether any of these defenses apply to your case depends entirely on the specific circumstances.
“People are often worried about, ‘Are they going to take me then and there if I go to my hearing?’ and the answer is almost always, ‘No,’” Benach says. “They think that by showing up, they’re going to be grabbed and deported.” Some even flee or go into hiding, she adds. But in fact, receiving removal proceedings could have a silver lining.
“We look at deportation proceedings or removal proceedings as an opportunity, because we find that a lot of people can actually qualify for relief, and we can do something for them. There are things you can apply for in deportation proceedings that you can’t apply for outside of them,” Benach adds.
Some of the most common defenses to removal include the following:
- Argue the Charges are Incorrect: In removal proceedings, the U.S. government will raise a specific charge that forms the basis of the action. In some cases, the underlying charges are incorrect. If the government can not produce evidence to support the charges or strong evidence is presented against the validity of the charges, the deportation case can be dismissed.
- File for Adjustment of Status: Adjustment of status allows a person to change their immigration status from ‘non immigrant’ to ‘immigrant.’ This requires a petition by a U.S. citizen or resident family member or an employer. When applicable, doing so can halt removal proceedings.
- Apply for Asylum: A person facing removal from the United States can file an asylum claim. If you are facing a legitimate fear of persecution in your native country, you may be eligible for asylum.
- Seek Cancellation of Removal: You can also file a petition to seek cancellation of the removal. This is an option for immigrants who have been in the United States for more than a decade and whose removal would cause “exceptional and extremely unusual” for an immediate relative.
- Apply for Relief under VAWA: The Violence Against Women Act (VAWA) provides immigration options for victims of domestic violence. Victims of spousal abuse may be eligible to get immigration relief without support from their partner. It should be noted that VAWA is a gender-neutral law. In other words, men are eligible to apply for relief through VAWA.
You can apply for several things before the judge, such as certain green cards, cancellation of removal, and asylum—something Benach says most people are otherwise afraid to do.
“They don’t know if they qualify and, if they submit something to the government, they think it could result in their removal. And that’s potentially true,” she says. “You could apply with the asylum office and, if you’re denied, you could be placed into removal proceedings. But if you’ve already been put into removal proceedings, there’s no reason not to seek asylum if you potentially qualify.”
What you can expect ranges not only region to region, but also judge to judge, Benach says. “If you apply in Arlington, Virginia, judges grant asylum in about 40 percent of them. In Atlanta and Charlotte, it’s about 5 percent. California, New York, and Washington [D.C.] are much closer to half.”
Take Immediate Action and Seek Help
If you or your loved one is facing removal, it is essential that you take immediate action to protect your rights. By raising a defense, you may be entitled to relief. However, deportation proceedings move quickly. You have limited time to make your case. If you fail to respond, a deportation order will be entered.
To protect your rights, you should consult with an experienced Washington, D.C. immigration law attorney as soon as possible.
“There is a lot of mistrust of attorneys in the [immigrant] community because there are people who rip them off,” Benach says. “These are people who hold themselves out as attorneys but aren’t really attorneys.”
Benach recommends asking people you know who have dealt with attorneys and had good experiences, as well as doing thorough research to make sure the attorney is licensed and in good standing. A reputable attorney will clearly state they are a lawyer and not merely a notary public. “And anybody who encourages you to lie is a big red flag,” Benach says. “Also, anyone who promises results and a work permit if you pay them many thousands of dollars.”
You can search reputable and experienced immigration attorneys through the Super Lawyers directory.
For more information on this area of law, see our immigration overview.
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