Deportation and Removal Defense and Appeals

Deportation and Removal Defense in Immigration Court

A non-citizen of the US can be removed, or deported, from the United States for a variety of reasons. Certain acts such as criminal convictions, instances of immigration fraud, letting your immigration status expire, being caught returning to the United States with a criminal record, or attempting to enter the United States with false documentation or without any documentation at all can all result in a non-citizen being served with a Notice to Appear in Immigration Court (“NTA”).

When a person appears in immigration court before an immigration judge, a record is created that will be used in determining ultimately whether the individual is deportable or allowed to remain in the United States.

It is highly recommended that you appear with an experienced immigration attorney in court, or consult with an immigration lawyer prior to going to court. The consequences of appearing in immigration court alone, unprepared, or even with the wrong lawyer, could be devastating.

The immigration attorneys at Rose Law Group, P.C., have successfully defended hundreds of deportation cases in immigration court, often times resulting in lawful residency status for its clients. There is nothing more rewarding than seeing someone go from deportable to becoming a lawful resident of the United States. Not every person charged with deportation is able to win and become a resident, since every case is different and often times the chance of success depends on the criminal and immigration record of the person being charged.

However, an experienced and aggressive deportation defense attorney can advise you or your family on the charges being brought against you and the likelihood of success in court, before ever appearing before an Immigration Judge. We provide a free initial consultation to review the nature of the case and advise on the potential outcomes. If you or someone you love is facing deportation from the United States and has to appear in immigration court, contact one of the experienced deportation defense attorneys at Rose Law Group, pc, today.

Cancellation of Removal for Permanent Residents

A common misconception is that if someone has a green card they cannot be deported. This is not the case. The US government can deport a green card holder, or lawful permanent resident, for a variety of reasons, the most often being some kind of criminal conviction that affects their immigration status.

Someone who is a lawful permanent may apply for Cancellation of Removal for Permanent Residents before an immigration judge. Cancellation of Removal is a one-time pardon for a lawful permanent resident or green card holder that, if granted, will cancel a deportation but is not available any time in the future if that person gets into trouble again. A lawful permanent resident is eligible for Cancellation of Removal in immigration court if they meet the following requirements:

  • You have been a lawful permanent resident (green card holder) for at least 5 years
  • You have resided continuously in the United States for at least 7 years after being admitted to the US in any status
  • You have not been convicted of an aggravated felony and are not inadmissible to the US for any security related reasons

Simply meeting these requirements is not a guarantee that you will be granted Cancellation of Removal for Permanent Residents. You must also convince the immigration judge that your positive factors, or equities, outweigh the negative ones.

Because this is a complicated area of immigration law with great consequences on a person’s ability to lawfully remain in the U.S., it is highly recommended that you appear in court, and consult with prior to appearing in court, an experienced, knowledgeable, aggressive immigration attorney like the ones at Rose Law Group, p.c.

Cancellation of Removal for Non-Permanent Residents

Cancellation of Removal or deportation from the U.S. is also available to non-permanent residents of the United States, or undocumented individuals who are residing here without lawful permission. This form of Cancellation of Removal is called Cancellation of Removal For Certain Non-Permanent Residents.

A person is eligible for Cancellation of Removal for Certain Non-Permanent Residents if they meet the following criteria:

  • You have been physically present in the United States for a continuous period of ten years prior to the beginning of removal proceedings;
  • You have been a person of good moral character for ten years;
  • You are not inadmissible due to certain criminal, fraud based, or security related grounds;
  • Your removal would result in exceptional and extremely unusual hardship to your United States citizen or lawful permanent resident Spouse, Parent, or Child (under 21 years of age).

While most people who qualify for Cancellation of Removal for Certain Non-Permanent Residents have little trouble demonstrating the four criteria categories listed above, the case is often decided based on whether the Immigration Judge believes the person has demonstrated the “exceptional and extremely unusual hardship” element. For a finding of “exceptional and extremely unusual hardship”, the Judge will look at:

  • Your relatives age, health, and length of time residing in the U.S.;
  • Your relatives community ties to the U.S and abroad;
  • Any exceptional medical, psychological, physical, or educational concerns of your United States citizen or LPR relative
  • Any other factor you or your attorney think relevant to the overall hardship they would face if you were deported from the U.S.

There is a limit of 4,000 people who are eligible to be granted Cancellation of Removal for Certain Non-Permanent Residents each year.

Before applying for Cancellation of Removal for Certain Non-Permanent Residents in immigration court, consult with an attorney at Rose Law Group, p.c.


The United States asylum laws are meant to protect individuals coming to this country seeking protection because they have suffered persecution, or have a fear that they will be persecuted, due to: race, religion, nationality, membership in a particular social group, or political opinion.

If you are seeking asylum in the United States based upon a well founded fear of persecution due to one of these categories, you may file a Form I-589 Application for Asylum and for Withholding of Removal, within 1 years of arrival to the United States.

You may include your spouse and children who are in the United States on your application at the time you file or at any time until a final decision is rendered in the case. Children must be under 21 and unmarried to be included in the asylum application.

Work authorization: You may apply for permission to work in the United States (employment authorization) 150 days after filing a complete asylum application (excluding any delays caused by you) AND as long as no final decision has been made on your application. To apply for work authorization pending your asylum case, you must file a Form I-765, Application for Employment Authorization.

Bringing Family to United States: If granted asylum, you may petition to bring your spouse and children to the United States by filing a Form I-730, Refugee/Asylee Relative Petition. You must petition within two years of being granted Asylum status unless there are any humanitarian reason to excuse the delay.

Obtaining Lawful Permanent Residency after Asylum: You may file for a green card (lawful permanent residency) one year after being granted asylum. To apply for the green card, file a form I-485, Application to Register Permanent Residence or to Adjust Status. You must submit separate I-485 applications for each family member who received derivative asylum status based on your case.

Types of Asylum: Asylum applications can be categorized in one of two ways: Affirmative Asylum cases, or Defensive Asylum cases.

Affirmative Asylum (with USCIS): To apply for affirmative asylum, a person must be physically present in the U.S. You may apply regardless of how you initially entered the United States. You must apply within the first year of the date of your last entry to the United States, unless you can show: 

  • Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing;
  • You filed within a reasonable amount of time given those circumstances.

Note: If you file for affirmative asylum and your case is not approved and you do not otherwise have lawful immigration status, you may be issued a Form I-862 Notice to Appear and your case may be forwarded to an immigration judge at the Executive Office for Immigration Review (EOIR). The Immigration Judge would then conduct a de novo review of your case and issue an independent decision.

Defensive Asylum (with EOIR): A Defensive application for asylum occurs when a person requests asylum as a defense against deportation from the United States. A person may only apply for defensive asylum if they are already in removal (or deportation) proceedings before an Immigration Judge in the Executive Office of Immigration Review (EOIR).

Generally, a person is placed into defensive asylum proceedings in one of two ways:

  • They are referred to an Immigration Judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
  • They are placed in removal proceedings because they were detained in the United States for some reason, and found to be without proper legal documentation or immigration status, OR they were caught by US Customs and Border Protection trying to enter the United States without proper documentation and placed in expedited removal proceedings and determined by an Asylum Officer to have a credible fear of persecution or torture if they were to return to their home country.

An Immigration Judge will hear a defensive asylum claim in Immigration Court in the EOIR. The Immigration Judge will determine first whether the person is eligible for asylum, and ultimately, whether or not to grant the claim for asylum. If asylum is denied, the Immigration Judge will analyze whether the person is eligible for any other form of relief from deportation, and if not, the individual could be subject to removal from the United States. If ordered removed or deported, a person has the right to appeal the Judge’s decision to the Board of Immigration Appeals.

Below is a chart provided by USCIS highlighting the key differences between “Affirmative” and “Defensive” Asylum Processes

Key Differences Between “Affirmative” and “Defensive” Asylum Process



Individual has not been placed in removal proceedings before an Immigration Judge

Individual has been placed in removal proceedings before an Immigration Judge

Individual affirmatively submits Form I-589 to USCIS


·         Is placed in removal proceedings by an Asylum Officer;

·         Is placed in removal proceedings for immigration violations; or

·         Tried to enter the United States without proper documents and was found to have a credible fear of persecution or torture

If the individual was referred by USCIS, the asylum application already filed will carry over to the immigration judge. If the individual did not yet submit an asylum application he or she will submit it to the Immigration Judge.

Individual appears before a USCIS Asylum Officer for a non-adversarial interview

Individual appears before an Immigration Judge with the Executive Office for Immigration Review for an adversarial, court-like hearing


Individual must provide a qualified interpreter for the asylum interview

The Immigration Court provides a qualified interpreter for the asylum hearing and all other court proceedings.

Because the United States’ Asylum laws are complex and not always uniformly applied by Immigration Judges and officers of USCIS, it is best to consult with a qualified immigration lawyer before applying for asylum, or presenting an asylum claim in court.

For more information about affirmative and defensive asylum and how these applications are processed and decided, please consult an Immigration Attorney at Rose Law Group, p.c. today.

Bond Representation for Detained Individuals and Families

Every year, the United States detains tens of thousands of non-citizens for in some form of immigration detention center. Many of these people are held at insanely high Immigration Bond amounts that their families simply cannot afford. Even worse, some are held for months or even years without bonds while their case makes its way through the complex, muddy waters of the U.S. immigration courts and appeals courts. Many of these people are immigrants, intending immigrants, or lawful permanent residents who have not committed any crimes, or who have committed a minor infraction with serious immigration consequences. Sometimes these people are detained months or even years after the fact. And worse, there is no right to public counsel as there is for those who cannot afford legal representation in the criminal justice system.

There is no way around it, Immigration detention is a serious, expensive, life-changing process that affects not only immigrants but their families and loved ones as well. Therefore, we highly recommend you hire competent, qualified, aggressive legal representation before appearing in immigration court to fight for your freedom or the release of your loved one from immigration custody.

Our experienced immigration attorneys have years of experience advocating for detained clients in some of the most difficult settings and circumstances imaginable. We have successfully secured the release of hundreds of clients from immigration custody and returned them to their eager and joyful families. We believe your liberty is the most important thing in life, and we take your case as seriously as if it were our own. We represent clients detained in Immigration Detention centers all across Arizona and are licensed to appear in immigration court across the United States.

We are available 24 hours a day, 7 days a week for a free consultation regarding you or your loved one’s immigration case. Contact us at Rose Law Group, p.c. today.

Motions to Reopen

Often times, and for a variety of reasons, a person is removed from the United States, or deported, by an Immigration Judge. One remedy for this would be to file a Motion to Reopen the matter. A motion to reopen is not available to deported individuals in all cases, but generally is available if filed within the appropriate time and when the argument has a valid basis in law.

A successful motion to reopen results in the Immigration Judge who ordered the deportation re-opening the matter to conduct another review of the case based on additional considerations or evidence.

Generally speaking, a Motion to Reopen must be filed within 90 days or three months of the final order of deportation from the Immigration Judge, however there are some exceptions.

Motion to Reopen and Rescind an In Absentia Order of Deportation

An individual in removal proceedings is expected and required to attend each court hearing, and if they do not, the Immigration Judge can deport them through issuing an in absentia order. A motion to reopen proceedings following such an in absentia order is available so long as the motion is based on lack of notice or exceptional circumstances.

A lack of notice based motion to reopen may be filed at any time, since the argument is that the individual was not properly notified of his or her responsibility to attend the immigration court date.

An exceptional circumstance motion to reopen is due 180 days after the date that the in absentia order was issued, and the motion must detail or layout the reasons that the person missed the hearing. If the Immigration Judge is convinced that the facts satisfy the requirements of exceptional circumstances, the motion will be granted and the person who was supposed to be deported will now have an opportunity to show in immigration court.

Motion to Reopen Based on Ineffective Assistance of Counsel

Attorneys aren’t perfect, no one is. But a lawyers actions should not have adversely affected a client’s immigration outcome. If you or your family believes that the case was negatively affected because of your immigration attorney, then you may be able to reopen the case by filing an Ineffective Assistance of Counsel motion to reopen. The deadline for this motion is either 90 or 180 days and it starts once it has been discovered that the attorney’s actions were ineffective.

If you or your family believes that your previous immigration lawyer may have adversely or negatively affected the outcome of your immigration case, contact an attorney at Rose Law Group, p.c. today for a free consultation, we can discuss the process of filing a motion to reopen based on ineffective assistance of counsel and help determine if there are grounds to file or not, as well as what to expect if the matter is reopened.

Call us today to discuss your individual case and determine whether a motion to reopen is the right choice.

Board of Immigration (BIA) Case Appeals

The Immigration Lawyers at Rose Law Group P.C. are qualified to handle any matter on appeal before the Board of Immigration Appeals, or the BIA.

The BIA is located in Falls Church, Virginia. The BIA is the appeals branch of the Executive Office of Immigration Review that reviews decisions issued by lower courts and sometimes by USCIS officers. In some instances, BIA decisions may be in turn appealed to U.S. Court of Appeals. The BIA will review a decision rendered by the lower court or agency, and in some cases affirm the decision, or in other cases, reverse the decision or remand the case back to the Judge who issued it for further review.

Often times an individual disagrees with the decision rendered by the Immigration Judge in his or her case. If they wish to appeal the decision, they must file written notice along proper paperwork and fees in order for the BIA to process an appeal of the Judge or Officer’s decision. Often times, with the BIA appeal is pending, the individual is afforded the right to continue to work or remain in the United States. Because a BIA appeal has such important consequences on an individual’s immigration case, we recommend you consult at qualified immigration lawyer before deciding whether to file an appeal or represent yourself. Contact an Immigration Attorney at Rose Law Group, p.c. for a free consultation regarding your BIA immigration case appeal today.

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