Removal Defense: Assembling A Strong Case For Immigration Court
By Alena Shautsova, New York Immigration Lawyer
Facing removal (deportation) proceedings can be one of the most terrifying experiences for an immigrant in the United States. Fortunately, there are legal defenses available that, if properly presented, can stop removal and offer a pathway to lawful status. In this guide, we will explore the main forms of removal defense, including asylum, cancellation of removal, and fraud waivers under INA §237(a)(1)(H). We will also offer practical tips for assembling a strong case in immigration court.
Understanding Removal Proceedings
Removal proceedings begin when the Department of Homeland Security (DHS) files a Notice to Appear (NTA) in immigration court, charging the person ("respondent") with being removable from the United States. Common grounds include overstaying a visa, entering without inspection, or committing fraud or a crime. The immigration judge will evaluate whether the charges are true and, if so, whether the respondent qualifies for any relief.
1. Asylum as a Defense to Removal
Asylum is one of the most powerful forms of protection against removal. A person may apply for asylum in court if they fear returning to their home country due to past persecution or a well-founded fear of future persecution based on one of five protected grounds:
- Race
- Religion
- Nationality
- Political opinion
- Membership in a particular social group
Practical Tips for Assembling a Strong Asylum Case:
a. Write a Detailed Declaration
The core of an asylum case is the applicant's personal declaration. It should describe, in vivid and chronological detail:
- Who harmed you or threatened you
- Why they targeted you
- How the government was involved or failed to protect you
- Why you are afraid to return
Tip: Use plain language and avoid exaggerations. Dates, names, and locations should be accurate and consistent.
b. Gather Corroborating Evidence
- Medical records
- Police reports or complaints
- News articles
- Expert affidavits (e.g., country conditions experts) (EXTREMELY IMPORTANT!)
- Witness letters
Tip: If evidence is hard to obtain, explain why. The law does not require evidence that is impossible to get, but the lack of explanation can hurt your credibility.
c. Stay Consistent
Consistency across your asylum application (Form I-589), declaration, supporting documents, and testimony is crucial. Inconsistencies can result in a denial based on lack of credibility.
d. Get Expert Help
Work with an experienced immigration attorney who can help identify the legal theory of your case and present it effectively.
2. Cancellation of Removal for Non-Permanent Residents
Cancellation of removal is a form of relief for individuals who have lived in the U.S. for an extended time and can show exceptional hardship to a qualifying U.S. citizen or lawful permanent resident (LPR) relative.
Eligibility Requirements:
- Continuous physical presence in the U.S. for at least 10 years before the NTA was served
- Good moral character
- No disqualifying criminal convictions
- Exceptional and extremely unusual hardship to a U.S. citizen or LPR spouse, parent, or child
Practical Tips for a Strong Cancellation Case:
a. Prove 10 Years of Presence
- Lease agreements
- Utility bills
- Tax returns
- Pay stubs
- Medical or school records
Tip: Gaps in documentation can be explained, but too many gaps may weaken your case.
b. Prove Good Moral Character
- Letters from community members, employers, and religious leaders
- No criminal history or active compliance with rehabilitation if applicable
c. Document Hardship to Qualifying Relatives
- Medical issues (with records and expert letters)
- Educational disruption
- Psychological evaluations (especially for children)
- Family support systems in the U.S. versus the home country
Tip: The standard is very high. The judge must find that the hardship is beyond what normally would be expected.
d. Tell a Compelling Story
Explain why you deserve to stay in the U.S., how you contribute to your community, and what your removal would mean for your family.
3. Fraud Waiver under INA §237(a)(1)(H)
Sometimes, DHS initiates removal proceedings because a person obtained a visa or green card by fraud or misrepresentation. In certain cases, a waiver of fraud is available under INA §237(a)(1)(H).
Who Qualifies for This Waiver?
- You are charged with being inadmissible or removable due to fraud or willful misrepresentation
- You are the spouse, parent, or child of a U.S. citizen or green card holder
- You were in possession of a valid visa or green card at the time of entry (despite the fraud)
- You merit a favorable exercise of discretion
Practical Tips for a Strong Fraud Waiver Case:
a. Demonstrate the Family Relationship
- Birth certificates
- Marriage certificates
b. Show Evidence of the Misrepresentation and Explain It
- Admission of the misrepresentation
- Explanation of the context (was it intentional, was there confusion, etc.)
Tip: Accepting responsibility helps. Blaming others may backfire unless you can prove it.
c. Prove Equities
- Long residence in the U.S.
- Good moral character
- Family ties
- Employment history
- Community involvement
d. Emphasize Hardship to U.S. Family
Although not technically required, showing hardship to a U.S. citizen or LPR relative can strengthen your discretionary case.
Preparing for Court
Regardless of the type of relief sought, every successful removal defense case includes the following elements:
- Organized Documentation
Keep copies of every form, document, and submission. Use tabs and index sheets. Immigration judges appreciate well-organized files. - Legal Briefs
Submit a legal memorandum explaining the law and how it applies to your case. This helps the judge and supports your arguments. - Practice Testimony
Prepare for your individual hearing with your attorney. Go over your declaration and supporting documents. Practice answering questions clearly and calmly. - Arrive Early and Dress Appropriately
Being punctual and respectful in court helps build credibility. - Stay Informed
Removal proceedings can take years. Stay in touch with your attorney, update your address with the court (Form EOIR-33), and attend every hearing.
Final Thoughts
Removal defense cases are complex and emotionally draining, but they can also lead to permanent status in the United States. Whether you are seeking asylum, applying for cancellation of removal, or requesting a fraud waiver under INA §237(a)(1)(H), your success depends on preparation, evidence, and legal strategy.
At the Law Office of Alena Shautsova, we have helped hundreds of clients fight removal and build new lives in the United States. If you or someone you know is facing deportation, schedule a confidential consultation today.
Contact us at www.shautsova.com or call us at (917) 885-2261. Let us help you protect your future.