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Deportation Defense ATTORNEY Immigration Court

Deportation Defense is one of the most difficult areas of Immigration Law.

This is why when you go to Immigration Court alone, Immigration Judges are willing to give you a continuance of your hearing to give you time to get an attorney. In addition, you are given a list of organizations that may be able to assist you for a free or low cost. However, you are facing the risk of being removed from the United States. Therefore it is essential that you hire an Immigration Attorney experienced in Deportation Defense.

If you are in Immigration Court you are being charged with deportation, but there are several defenses against these charges. 

Cancellation of Removal

Cancellation of Removal for Certain Legal Permanent Residents

You can obtain a waiver of your deportation for having committed a deportable offense or more than two crimes involving moral turpitude (CIMT) within 5 years of being admitted as a Legal Permanent Resident.

How can you qualify for Cancellation of Removal for Certain Legal Permanent Residents? There are three requirements:

  • Lawful admission for Permanent Residency for not less than 5 years.

  • Resided in the United States continuously for 7 years after having been admitted in any status

  • Have not been convicted of any Aggravated Felony

  • Discretion of the Immigration Judge

How can I show the Immigration Judge that I deserve to remain in the United States (Discretion)?

Being statutorily eligible for Cancellation of Removal for Legal Permanent Residents is not enough to win your case in court. You have to show the Immigration Judge why you deserve a waiver and stay in the United States, that you deserve a second chance. The first thing is to show that your deportation would cause you and your family a lot of suffering. Another important element is to show remorse for the mistakes of your past. If you tell the Immigration Judge that the reason why you are in removal proceedings shouldn't have been that serious, it will show that you are not remorseful and that can result in a denial of your application.

Another important item that goes along the element of Discretion of the Immigration Judge is to Include in your application letters of reference from family, friends and other people of your community. The Immigration Judge wants to see how many people would be impacted if you were ordered removed.

Last; but not least, you can show the Immigration Judge the assets that you have acquired in the U.S. such as house, vehicles, businesses, that you paid your taxes, and more. If you are able to convince the Immigration Judge that you deserve to remain in the United States, your waiver could be granted to allow you to remain in the U.S.

Cancellation of Removal for Non-Legal Permanent Residents

If you are not a Legal Permanent Resident and you are in removal proceedings, you may be eligible for another type of cancellation that allows non-Legal Permanent Residents to remain in the country if they show the following factors:

  • Ten years of continuous physical presence in the United States prior to the date of your Notice to Appear

  • Qualifying relatives such as Legal Permanent Resident or US Citizen spouse, child or parent

  • Good moral character

  • No criminal convictions listed in INA Section 212(a)(2), 237(a)(2), or 237(a)(3).

  • Exceptional and extremely unusual hardship to your qualifying relative if you are deported.

What if I entered the country without proper documents, do I still qualify?

Yes, even if you entered the country without being admitted you may still qualify for Cancellation of Removal for Non-LPRs. You must, however, keep good records of your date of entry to show the Immigration Judge that you have met the continuous physical presence. This can be established with your employment history or residence history.

Will my criminal history affect my case for Cancellation of Removal?

In Immigration, there are certain crimes are Inadmissible and some that are Deportable offenses. Some crimes may disqualify you from a Petition by a family member, but not necessarily prevent you from qualifying for Cancellation of Removal in Immigration Court.

There are crimes that can statutorily disqualify you from Cancellation of Removal because it shows that you don't meet the Good Moral Character requirement. These crimes are found in INA Section 101(f). The following is a list of crimes that disqualify you from Cancellation of Removal; but this list changes with new case decisions in the higher courts:

  • Drug offenses, except for possession of fewer than 30 grams of marijuana

  • Conviction or admission of a Crime Involving Moral Turpitude

  • Two convictions with a total sentence of 5 years or more

  • Prostitution or other commercialized vices

  • Alien smuggling

  • Habitual drunkard

The following crimes do not bar you from Cancellation of Removal but they bar you from Good Moral Character if within the 10 years prior to the issuance of a Notice to Appear (NTA):

  • Reason to believe you are a drug trafficker

  • Two or more convictions for illegal gambling

  • False testimony to keep Immigration benefits

  • Coming to the U.S. to practice polygamy

  • Spending 180 days or more in jail or prison for a conviction or convictions

  • Murder conviction at any time

  • Aggravated felony conviction after November 29, 1990

What is exceptional and extremely unusual hardship?

It is the level of hardship that your qualifying relative would suffer if you are deported. The qualifying relative can be a parent, child (under 21) or spouse that's either a US Citizen or Legal Permanent Resident.

There are no regulations that say what the court should look for in hardship. We use the case law that the Board of Immigration Appeals (BIA) has provided as guidance. There are three cases we look at when determining hardship:

  • Matter of Monreal, 23 I&N Dec. 56 (BIA 2001)

  • Matter of Andazola-Rivas, 23 I&N Dec. 319 (BIA 2002)

  • Mater of Recinas, 23 I&N Dec. 467 (BIA 2002)

In these cases the courts have provided guidance as to what factors to look for to establish hardship:

  • Age

  • Health

  • Special needs in school

  • Length of residence in the United States

  • Family and community ties in the United States

  • Family and community ties in the home country

  • Circumstances in the home country, including standard of living, way of life, languages spoken, work opportunities; and

  • Alternative methods for immigrating the cancellation applicant

The court must look at the cumulative effect of all of the facts when viewed together. Basically, look at the totality of the circumstances approach. The courts must make a determination by looking at all of these factors combined that the qualifying relative will suffer exceptional and extremely unusual hardship if the applicant is deported.

Fear of Returning to your home country

If you fear returning to your home country because of past or future persecution you may qualify for asylum. Asylum requires the filing of an I-589 form, which also provides alternate reliefs such as Withholding of Removal and Convention Against Torture. You can only apply for asylum inside the United States or a port of entry.


You may apply for asylum if you meet the refugee definition, not statutorily barred from applying, and merits a favorable exercise of discretion (INA Section 208, 8 USC Section 1158). The requirements are for applying for asylum are as follows:

  • The harm feared or suffered rises to the level of persecution

  • The fear is based on past persecution or a well-founded fear of future persecution

  • Persecution was or would be on account of 1 of 5 enumerated grounds

  • The laws of their country are not able to protect them

  • Not barred from asylum protection

  • File for asylum within 1 year of having entered the United States.

What is persecution for Asylum?

The Immigration and Nationality Act (INA) does not have a definition for persecution, but the Board of Immigration Appeals (BIA) has provided a definition saying “a threat to the life or freedom of, or the infliction of suffering or harm upon those who differ in a way regarded as offensive.” Immigration Courts have used a general definition of persecution that doesn't necessarily include physical harm, such as depriving someone of their freedom, food, housing, employment, or other essentials of life.

What are the enumerated grounds that qualify for Asylum?

The enumerated grounds for asylum are as follows:

  • Political Opinion

  • Membership in a particular social group

  • Religion

  • Nationality

  • Race

What is a Particular Social Group?

The membership in a “particular social group” is difficult to define. There are various case decisions from different parts of the country that giving different opinions as to who belongs to what particular social group. The most recent decision was Matter of W-Y-C & H-O-B, 27 I&N Dec. 189 (BIA 2018) that requires asylum applicants to clearly delineate on the record before the Immigration Judge the “particular social group” in which they claim membership. Failure to do so, the BIA would not consider a newly proposed particular social group on appeal. The particular social group is one of the most challenging areas of asylum defense.

Matter of Acosta defined a particular social group as persons sharing common immutable and or fundamental traits such as sex, color, kinship ties, or share a past experience. This was the law for many years until Matter of C-A I&N Dec. 951 (BIA 2006) came up with a more narrow test such as 1) the group shares immutable and or fundamental traits, 2) is socially distinct, and 3) is a particular group.

Defining your particular social group is key to winning your asylum case in Immigration Court. This is why it is essential that you have an experienced Asylum Immigration Attorney representing you. Burga Law Firm PC has been successful in representing asylum applicants in both Immigration Court and at USCIS.

Withholding of Removal

You may apply for withholding of removal by filing a form I-589. This is governed in INA Section 243(b)(3), 8 USC Section 1231(b)(3). Asylum is preferable but if you are not granted asylum you can apply for Withholding of Removal.

What are the benefits of Withholding of Removal?

If you can establish well-founded-fear of persecution then a Judge would grant the applicant to stay in the country along with the following benefits:

  • Live and work in the U.S. as long as the country conditions in the home country don't change

  • It does not enable the applicant to apply for permanent residence

  • May apply at any time, meaning there is no 1-year deadline to file

  • Has less strict criminal bars

  • Cannot be denied withholding as a matter of discretion if the person qualifies under the statute, and

  • Must prove a “reasonable probability” of persecution (more than 50%).

There are certain crimes that bar eligibility for not only withholding but also asylum. This is defined as a Particularly Serious Crime (“PSC”).

Convention against torture (CAT)

If you fear that you will be tortured if you return to your home country then you can be eligible for CAT. The United States implemented the international convention, which prohibits a country from sending a noncitizen to a country where he or she will be tortured.

To apply for CAT the applicant must show that it is more likely than not that he or she will be tortured upon return to the home country. 8 CFR Section 208.16(c).

Torture is severe pain, whether emotional or physical, intentionally inflicted upon a person for any of various reasons, such as to obtain information, punish, or coerce.

Burga Law Firm has successfully represented many individuals with their asylum claims. Lately, the new Administration has made several developments and changes in this area of law. However, Burga Law Firm is always up to date with changes and how to overcome them.

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