A lawyer may be able to stop deportation in the United States when the person has a valid legal defense, qualifies for immigration relief, can successfully challenge a removal order, or obtains a stay preventing Immigration and Customs Enforcement from carrying out the deportation. Hiring a lawyer by itself does not cancel deportation, but an experienced immigration attorney can identify legal options that may prevent removal permanently or delay it while the case is reviewed.
The available strategy depends on where the immigration case stands. Someone who has just received a Notice to Appear may have far more options than someone who already has a final removal order and an imminent deportation date.
How Can a Lawyer Fight Deportation?
An immigration lawyer first determines why the government believes the person can be removed and whether there is a legal defense.
Depending on the circumstances, the attorney may argue that the government has not established removability or may pursue relief such as:
- Asylum
- Withholding of removal
- Protection under the Convention Against Torture
- Cancellation of removal
- Adjustment of status
- Certain waivers
- Special protections for qualifying abuse victims
- Motions to reopen or reconsider
- Appeals
- A stay of removal
Not every remedy is available to every immigrant. Immigration status, length of residence, criminal history, family relationships, past immigration violations and fear of returning to another country can all affect eligibility.
Can a Lawyer Stop Deportation Before the Immigration Judge Orders Removal?
A lawyer may have the strongest opportunity to prevent deportation while removal proceedings are still pending.
The attorney can review the government’s allegations, challenge evidence, determine whether charges of removability are legally correct and apply for any relief for which the person qualifies.
For example, someone with a qualifying path to permanent residence may potentially seek adjustment of status during removal proceedings. Another person may qualify for asylum or cancellation of removal.
An immigration judge ultimately decides whether the person is removable and whether requested relief should be granted.
Can Cancellation of Removal Stop Deportation?
Cancellation of removal can permanently stop deportation for certain qualifying immigrants.
For some lawful permanent residents, eligibility generally requires at least five years as a lawful permanent resident, seven years of continuous residence after lawful admission in any status, and no aggravated felony conviction. The immigration judge must also decide that the person deserves relief as a matter of discretion.
Different and considerably stricter requirements apply to certain nonpermanent residents. A qualifying applicant generally must establish at least ten years of continuous physical presence, good moral character during the relevant period, the absence of specified disqualifying offenses, and that removal would cause exceptional and extremely unusual hardship to a U.S. citizen or lawful permanent resident spouse, parent or child.
If cancellation is granted to a qualifying nonpermanent resident, the person’s removal is cancelled and status is adjusted to lawful permanent residence.
Can Asylum Stop Deportation?
Asylum can provide a defense to removal when a person qualifies for protection because of persecution or a well-founded fear of persecution based on a protected ground.
An immigration attorney can help prepare evidence, declarations, country-condition materials and legal arguments supporting the claim.
Other protections may also be available when asylum itself cannot be granted. These can include withholding of removal or protection under the Convention Against Torture.
The standards and consequences differ significantly, so these forms of protection should not be treated as interchangeable.
Can Marriage to a U.S. Citizen Stop Deportation?
Marriage to a U.S. citizen does not automatically erase a deportation case.
A genuine marriage may sometimes provide a pathway toward lawful permanent residence, but eligibility depends on many factors, including:
- How the immigrant entered the United States
- Whether a visa is immediately available
- Previous immigration violations
- Criminal history
- Prior removal orders
- Fraud or misrepresentation issues
- Whether any waiver is required
The Department of Justice recognizes adjustment of status as a potential form of relief in removal proceedings for some people who have an immediately available immigrant visa.
A lawyer may therefore use an approved or pending family-based petition as part of a broader strategy, but marriage itself does not automatically stop ICE or terminate immigration court proceedings.
Can a Lawyer Appeal a Deportation Order?
A lawyer can appeal certain immigration judge decisions to the Board of Immigration Appeals, commonly called the BIA.
An appeal generally must be received by the BIA within 30 calendar days after the immigration judge issues an oral decision or mails a written decision. Missing the deadline can cause the judge’s decision to become final.
When a timely appeal of the immigration judge’s merits decision is properly filed, the removal order is generally automatically stayed while the BIA considers the appeal. The order is also ordinarily stayed during the 30-day appeal period unless the right to appeal was waived.
This can be extremely important because it may prevent deportation while legal errors are reviewed.
What Is a Stay of Removal?
A stay of removal temporarily prevents the Department of Homeland Security from executing a removal order.
A stay does not necessarily eliminate the removal order. Instead, it prevents deportation for a period while another legal issue is being considered.
Stays can be automatic in certain situations and discretionary in others. A person with a final removal order may also seek a discretionary stay in connection with particular motions or proceedings.
An immigration lawyer dealing with an imminent deportation may therefore pursue both the underlying legal challenge and an emergency stay.
Does Filing a Motion Automatically Stop Deportation?
Filing a motion does not always stop deportation.
This is a particularly dangerous misunderstanding.
For many motions to reopen or reconsider, deportation can still occur unless a stay has been granted. EOIR specifically states that merely filing a request for a discretionary stay does not prevent DHS from executing the removal order before the stay is actually approved.
There are important exceptions. Certain motions involving removal orders entered in absentia, meaning while the person was absent from the hearing, can trigger an automatic stay under particular circumstances.
A lawyer therefore needs to determine whether the particular filing creates an automatic stay or whether a separate emergency request is necessary.
Can a Lawyer Reopen a Deportation Case?
A lawyer may be able to file a motion to reopen when there are legally sufficient grounds to return the case to immigration court or the BIA.
A motion to reopen normally presents important new facts or evidence that were not previously available.
Many motions to reopen are generally subject to a 90-day deadline after the final administrative decision, although immigration law contains significant exceptions.
For example, time and numerical limitations can be different when a person seeks asylum, withholding of removal or Convention Against Torture protection because of materially changed conditions in the country to which removal has been ordered. Such a filing does not automatically stay removal, so a separate stay request may be critical.
What If Someone Missed Their Immigration Court Hearing?
An immigration judge can order someone removed in absentia when the person fails to appear for a required hearing.
A lawyer may investigate whether the order can be reopened.
Possible issues can include lack of proper notice or legally recognized circumstances explaining the failure to appear.
These cases have special reopening and stay rules that differ from ordinary motions. A lawyer should move quickly because both deadlines and deportation risk can become critical.
Can a Lawyer Stop Deportation Based on Family Hardship?
Family hardship can matter under certain forms of immigration relief, but merely having a U.S. citizen spouse or child does not automatically stop removal.
Nonpermanent-resident cancellation of removal provides a good example. The applicant generally must show that removal would cause exceptional and extremely unusual hardship to a qualifying U.S. citizen or lawful permanent resident spouse, parent or child, in addition to satisfying the other statutory requirements.
Ordinary emotional or financial difficulty associated with separation may not by itself satisfy that demanding standard.
A lawyer can help develop evidence involving serious medical conditions, educational needs, financial dependence or other circumstances that may be legally relevant.
Can a Lawyer Stop Deportation After a Criminal Conviction?
A criminal conviction can make an immigration case much more complicated, but it does not mean that every form of relief automatically disappears.
The exact immigration consequences depend heavily on:
- The criminal statute
- The elements of the offense
- The sentence
- Immigration status
- When the offense occurred
- Whether the conviction qualifies as an aggravated felony or another disqualifying offense
For example, an aggravated felony can prevent a lawful permanent resident from qualifying for cancellation of removal.
Immigration lawyers handling criminal-removal cases often need to analyze the exact conviction record rather than simply relying on the everyday name of the crime.
Can a Lawyer Stop ICE From Deporting Someone Immediately?
A lawyer may be able to seek an emergency stay when removal is imminent, but obtaining one is not guaranteed.
EOIR distinguishes between emergency and non-emergency stay requests. Emergency procedures may be available when removal is approaching rapidly, while ordinary stay requests are handled through the normal adjudication process.
Timing becomes extremely important once a person is in ICE custody or has received instructions concerning removal.
Waiting until the last moment can eliminate options that would have been easier to pursue earlier.
Frequently Asked Questions
Q1. Can a lawyer guarantee that deportation will be stopped?
A legitimate lawyer cannot guarantee that an immigration judge, the BIA, DHS or a federal court will grant relief. An attorney can identify available defenses, prepare evidence, challenge legal errors and request stays, but the final decision belongs to the appropriate government authority or court.
Q2. Can a lawyer stop deportation after the person already has a final removal order?
A final order does not always eliminate every possible option. Depending on the facts, a lawyer may consider a motion to reopen, motion to reconsider, stay request, BIA proceedings or federal court review. The existence of a final order makes timing especially important because many filings do not automatically stop ICE from carrying out removal.
Q3. Does having U.S. citizen children automatically stop deportation?
U.S. citizen children do not automatically prevent a parent’s removal. Their circumstances may be relevant to certain immigration remedies, including cancellation of removal, but the parent must satisfy all of the legal requirements for that relief.
Q4. Can deportation still happen while an appeal is pending?
A properly filed direct appeal of an immigration judge’s merits decision to the BIA generally produces an automatic stay during the appeal period and while the BIA decides the appeal. Other appeals and motions do not necessarily carry the same protection, so the lawyer must determine whether a separate stay is required.
