Removal defense: a primer

Defenses are possible to prevent removal from the U.S.

In this uncertain political climate, when immigration issues are currently at the forefront in many areas, it is more important than ever to understand removal (formerly known as “deportation”) and how to defend yourself or a loved one in removal proceedings. The following will give you a basic understanding of the removal process and possible defenses to removal.

Kicking things off

The removal process begins once the United States Customs and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) determine that an immigrant is removable (deportable). At that time, a “Notice to Appear” will be issued, and the immigrant could be taken into custody to await a removal hearing. There is currently a huge backlog of cases in Immigration Courts around the country, so removal hearings usually take a while to get on the docket.

It is possible to request and be awarded bail while a case is pending before an Immigration Judge, however. Bail is fairly common in such cases, provided the person being detained isn’t being held on violent criminal charges or because he/she is being extradited to his/her home country to face charges there. Conditions may be placed on bail, such as wearing a GPS ankle monitor or limiting contact with certain people.

In between the time that a Notice to Appear is issued and a final order for removal is signed, there are several points at which key defenses could be raised that might allow an otherwise removable immigrant to stay in the country.


There are a number of defenses possible against removal, but these are best argued by a skilled attorney such as those at Hernandez & Associates. Some defenses involve particular criteria you need to prove in order to be successful, and someone with a background in immigration law has a statistically much greater chance of success than a layperson. Possible defenses and “removal relief” include:

  • Seeking an adjustment of status – if you, for example, overstayed a visa, then it may be possible to have your status adjusted from “nonimmigrant” to “immigrant” to allow you to stay in America
  • Seeking asylum, “withholding of removal” or protection against torture – you may be able to seek asylum, a withholding of removal or protection under the Convention Against Torture (CAT) if you can prove that you’d be subject to torture or persecution in your home country if you are returned; each of these has different criteria and puts different limits on the rights and liberties granted to the immigrant in question
  • Deferred action – if you are a student or graduate who overstayed a visa, it may be possible to defer action on your removal status until you complete your studies; deferral is offered on a case-by-case basis, so you’d need to make a strong argument as to why it is appropriate for you
  • Prosecutorial discretion – you could appeal directly to the government attorney trying your removal case that you shouldn’t be removed for various reasons; again, this is on a case-by-case basis, usually involves someone with no criminal record who entered the country legally initially, and you’d need to make a very compelling argument
  • Protection under the Violence Against Women Act (VAWA) – if you can meet certain criteria and can prove that you’ve been subjected to abuse by a “qualifying relative,” you may be granted cancellation of removal under the VAWA

To learn more about these and other possible defenses against removal proceedings, contact the Denver law offices of Hernandez & Associates. Call them today at 303-536-5134 or send an email to schedule a free initial consultation.

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