Benefits Fraud Arrest: Protect Yourself from Deportation

Being arrested for benefits fraud as an immigrant can trigger deportation proceedings, but removal is not automatic. You have the right to contest charges in immigration court, and several legal defenses — including cancellation of removal and voluntary departure — may be available. Hire an immigration attorney immediately to evaluate your specific situation.

Quick Answer

A benefits fraud arrest can make you deportable under INA §237(a)(3)(D), which covers falsely claiming eligibility for government benefits. However, deportation is a legal process — you must be served a Notice to Appear (NTA) and have the right to a hearing before an immigration judge. Acting quickly and securing legal counsel is critical to your defense.

When Deportation Risk Applies: Conditions and Factors

Not every benefits fraud case leads to deportation. The following factors determine your level of risk:

• Type of immigration status: Green card holders, visa holders, and undocumented immigrants face different exposure levels under the law.
• Criminal conviction vs. arrest: An arrest alone does not trigger deportation — a conviction for a crime involving moral turpitude (CIMT) or an aggravated felony under INA §101(a)(43) significantly raises your risk.
• Amount of benefits involved: Large-scale fraud is more likely to be classified as an aggravated felony, which carries mandatory deportation with very limited relief options.
• Prior immigration violations: Any prior order of removal or prior deportation history worsens your position before an immigration judge.
• Length of U.S. residency: Continuous physical presence of at least 10 years may qualify you for cancellation of removal under INA §240A(b).

Consult Ilya Fishkin, immigration attorney, to assess which of these factors apply to your case before your first court appearance.

Step-by-Step: How to Protect Yourself After a Benefits Fraud Arrest

1. Exercise your right to remain silent. Do not speak to ICE officers or law enforcement about your immigration status or the fraud allegations without an attorney present. Anything you say can be used in both criminal and immigration proceedings.
2. Hire an immigration attorney immediately. Time is critical. You have only 30 days to appeal an order of removal once issued. An attorney can file a motion to reopen within 90 days if an order was already entered. Check the current filing fee for the I-290B Notice of Appeal (currently $800 — confirm the latest amount at uscis.gov) before submitting.
3. Request a bond hearing. If detained by ICE, ask your attorney to file for a bond hearing so you can be released while your case is pending. Without release, preparing a defense becomes significantly harder.
4. File a Stay of Removal if necessary. If an order of removal has been issued, your attorney can file Form I-246 (Stay of Deportation) to pause enforcement while your appeal or motion is pending. The current filing fee is $155 — verify on uscis.gov.
5. Explore all available relief options. Depending on your circumstances, you may qualify for: cancellation of removal (INA §240A), withholding of deportation (INA §241(b)(3)), asylum or protection under the Convention Against Torture (CAT), or voluntary departure for up to 120 days under INA §240B.
6. Attend all immigration court hearings. Failure to appear results in an automatic order of removal issued in absentia. This is extremely difficult to reverse and may result in additional legal exposure.

What the Law Says

Benefits fraud by immigrants is addressed under several provisions of the Immigration and Nationality Act (INA):

• INA §237(a)(3)(D): Makes any alien deportable who has falsely represented a material fact in connection with a government benefit program.
• INA §212(a)(6)(C): Renders an immigrant inadmissible (and thus ineligible for many forms of relief) if found to have made willful misrepresentation to obtain an immigration benefit.
• INA §101(a)(43): Defines aggravated felonies, which include fraud offenses where the loss to the victim exceeds a statutory threshold. Aggravated felony convictions dramatically limit available defenses and can lead to mandatory deportation.
• 8 CFR §1240.26: Governs the conditions and eligibility requirements for voluntary departure, including the maximum 120-day period granted at the start of proceedings.

For full statutory text and current policy guidance, refer to the U.S. Department of Justice, which oversees the Executive Office for Immigration Review (EOIR) and immigration courts.

Important Notice

This material is for informational purposes only and does not constitute legal advice.