When Do You Actually Raise a Deportation Defense?

Facing removal from the United States? You have the right to raise a defense. This raises an important question: At what point in the removal process do you actually raise a defense? At Escobar Law Offices, we have deep experience with these cases. Here, our Virginia deportation defense attorney explains the key things you should know about when a defense is actually raised.

You Raise a Deportation Defense After an Immigration Court has Jurisdiction

Legal defenses, including deportation defenses, do not exist in a vacuum. It arises only after the Department of Homeland Security (DHS) files a Notice to Appear with the Immigration Court. When that happens, jurisdiction arises under 8 C.F.R. § 1003.14. Service of the Notice to Appear (NTA) alone is not enough. The charging document must be filed with the court. Once docketed, the Executive Office for Immigration Review (EOIR) assumes authority over the case.

It is at this point that you can determine what defenses against removal can reasonably be raised in your case. The Notice to Appear sets out factual allegations and statutory grounds of removability under the Immigration and Nationality Act (INA). Those charges define the battlefield. Until they are formally lodged, there is no structured opportunity to raise a deportation defense. 

The Master Calendar Hearing: Where the Defense is Formally Raised

Your Notice to Appear sets out the allegations. You respond to it formally. The Master Calendar Hearing is the procedural process through which that will generally happen. As part of the process, an immigration judge will place the respondent under oath and require pleadings. The respondent must admit or deny each factual allegation and concede or contest each charge of removability.

Deportation Defenses When Removability is Conceded

If removability is conceded, the respondent must then designate the specific forms of relief sought. That designation constitutes the formal raising of a deportation defense. Relief is not generalized resistance to deportation. It is a request for a specific statutory remedy such as asylum, withholding of removal, protection under the Convention Against Torture, cancellation of removal, or adjustment of status, as those are all different defenses against deportation.

Deportation Defenses When Removability is Conceded 

If removability is contested, the defense begins even earlier in substance. Your Virginia deportation defense lawyer may challenge whether the alleged criminal conviction qualifies as a removable offense, whether the statute was correctly charged, or whether the government can meet its burden of proof. In that posture, the defense is raised through legal argument before any application for relief is filed.

Contact Our Virginia Deportation Defense Lawyer Today

At Escobar Law Offices, our Virginia deportation defense attorney is a solutions-focused advocate for clients. If you have any questions about when you raise a defense against deportation, we can help. Contact us today for a completely confidential, no obligation consultation. With an office in Annandale, we provide deportation defense services all across the region.

Source:

ecfr.gov/current/title-8/chapter-V/subchapter-A/part-1003/subpart-C/section-1003.14