---
title: Deportation Defense Strategies
description: A comprehensive guide to legal strategies for defending against deportation proceedings in the United States.
keywords: [deportation, immigration, removal proceedings, asylum, withholding of removal]
category: law
---

## Introduction to Deportation Proceedings

Deportation, also known as removal, is the process by which the United States government forcibly removes a non-citizen from the country. Deportation proceedings are initiated by the Department of Homeland Security (DHS) and are governed by the Immigration and Nationality Act (INA) and associated federal regulations. Individuals facing deportation have the right to defend themselves and present evidence in an immigration court hearing before an immigration judge. This reference document outlines several key legal strategies and defenses that can be employed to contest deportation.

## Challenging Removability Grounds

The first step in a deportation defense is to examine the specific grounds upon which the government is seeking to remove the individual. Under INA § 237(a), there are numerous potential bases for deportation, including but not limited to: commission of a crime, overstaying a visa, or entering the country illegally. 8 U.S.C. § 1227(a). The respondent bears the initial burden of establishing that they were "lawfully admitted" to the United States. Toro v. Sec'y, 644 F.3d 1201, 1205 (11th Cir. 2011). If the government cannot establish by "clear and convincing evidence" that the individual is removable on the charged ground, the deportation case must be terminated. INA § 240(c)(3)(A).

## Asylum and Withholding of Removal

Two common defenses to deportation are applications for asylum and withholding of removal. To qualify for asylum, the individual must demonstrate a "well-founded fear of persecution" in their country of origin on account of their race, religion, nationality, political opinion, or membership in a particular social group. INA § 101(a)(42). The applicant bears the burden of proving eligibility by a "preponderance of the evidence." 8 C.F.R. § 208.13(a). Withholding of removal has a higher standard, requiring the applicant to show a "clear probability" of persecution if deported. INS v. Stevic, 467 U.S. 407, 429-30 (1984). Successful asylum or withholding claims prevent deportation to the country of feared persecution.

## Cancellation of Removal

Cancellation of removal is a discretionary form of relief that allows certain long-term residents to avoid deportation. For non-permanent residents, the individual must demonstrate: (1) continuous physical presence in the U.S. for at least 10 years; (2) good moral character; (3) no disqualifying criminal convictions; and (4) that deportation would result in "exceptional and extremely unusual hardship" to a U.S. citizen or permanent resident spouse, parent, or child. INA § 240A(b)(1). Permanent residents must show (1) at least 7 years of continuous residence after being lawfully admitted, and (2) no aggravated felony convictions. INA § 240A(a). The immigration judge has broad discretion in weighing the equities of each case.

## Adjustment of Status

Another potential defense to deportation is adjustment of status to lawful permanent residence. Generally, an individual is eligible to apply for adjustment if they were "inspected and admitted or paroled" into the United States, have an approved immigrant visa petition, and can demonstrate admissibility. INA § 245(a). Common paths to adjustment include family-sponsored petitions (INA § 201(b)), employment-based petitions (INA § 203(b)), or diversity visa lottery (INA § 203(c)). If the application is approved, the individual can obtain a "green card" and avoid deportation. However, individuals who entered the U.S. without inspection are generally barred from adjusting status. INA § 245(a).

## Prosecutorial Discretion and Deferred Action

In certain cases, the government may exercise "prosecutorial discretion" and choose not to pursue deportation, even if the individual is technically removable. Factors that immigration authorities may consider include: the person's length of residence, family and community ties, military service, and lack of criminal history. See Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens" (June 17, 2011). Additionally, the government may grant "deferred action" status, which temporarily defers deportation and provides work authorization. INA § 274A(h)(3).

## Conclusion

Facing deportation can be a daunting and stressful experience, but there are numerous legal strategies and defenses available to contest removal proceedings. Individuals should consult with an experienced immigration attorney to evaluate their specific circumstances and the best path forward. By understanding the relevant laws, regulations, and legal standards, respondents can mount a strong defense and potentially avoid deportation.