Deportation Criminal Charges Defense: Your Rights
Facing deportation due to criminal charges? Learn your legal options, key defenses, and step-by-step actions to fight removal in U.S. immigration court.
Yes, you can fight deportation even when facing serious criminal charges. U.S. immigration law provides several defenses — including cancellation of removal, asylum, and withholding of removal — that may apply depending on your case. Consult an immigration attorney immediately; you have 30 days to appeal an order of removal. Verify current deadlines on the official USCIS website.
Quick Answer
A criminal charge or conviction does not automatically result in deportation. Immigration courts evaluate each case individually. Depending on the nature of the offense, your immigration history, and your ties to the U.S., multiple legal defenses may be available to challenge or delay a deportation order.
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When These Defenses Apply: Key Conditions
Not every criminal matter triggers deportation proceedings, but certain offenses are defined under the Immigration and Nationality Act (INA) as grounds for deportability. These include:
- Aggravated felonies (INA §101(a)(43)) — the broadest and most serious category, limiting many defenses
- Crimes involving moral turpitude (CIMT) — offenses reflecting dishonesty or depravity under INA §237(a)(2)(A)
- Controlled substance violations — drug offenses under INA §237(a)(2)(B)
- Domestic violence offenses — under INA §237(a)(2)(E)
Your eligibility for specific defenses depends on the offense category, your immigration status, and how long you have lived in the U.S. lawfully. DOJ immigration courts apply these statutory categories during removal proceedings.
Expert guidance is critical at this stage. Ilya Fishkin, immigration attorney works with clients navigating complex deportation cases involving criminal charges.
Step-by-Step: How to Fight Deportation on Criminal Grounds
- Hire an immigration attorney immediately. Criminal deportation cases are among the most complex areas of immigration law. Retain counsel before your first immigration court hearing.
- Review the Notice to Appear (NTA). The NTA outlines the government's charges against you. Your attorney will identify errors, procedural defects, or misclassified offenses that can be challenged.
- Determine your available defenses. Based on your status and offense, your attorney will assess options such as cancellation of removal (INA §240A), asylum (INA §208), withholding of removal (INA §241(b)(3)), or a U-Visa if you are a crime victim.
- File a motion or application with the immigration court. Depending on your defense, this may include Form EOIR-42B (cancellation of removal for non-permanent residents), Form I-589 (asylum), or other filings. Check current filing fees at uscis.gov.
- Request a Stay of Removal if needed. If a deportation order has already been issued, file Form I-246 to request a stay while your case is pending. The current fee for Form I-246 is $155 — verify the current amount on uscis.gov.
- Appeal within 30 days if the court rules against you. You have 30 days from an order of removal to appeal to the Board of Immigration Appeals (BIA). A Motion to Reopen must be filed within 90 days.
What the Law Says
Several provisions of the Immigration and Nationality Act (INA) and the Code of Federal Regulations (8 CFR) govern deportation defense on criminal grounds:
- INA §237 — defines the grounds of deportability, including criminal offenses
- INA §240A — provides for cancellation of removal for lawful permanent residents (LPRs) and certain non-LPRs who meet continuous presence requirements
- INA §241(b)(3) — establishes withholding of removal protection when deportation would likely result in persecution
- INA §208 — governs asylum eligibility, which can bar deportation in qualifying cases
- 8 CFR §1003.23 — sets the 90-day deadline for a Motion to Reopen before the immigration court
- 8 CFR §1003.38 — sets the 30-day deadline to appeal an order of removal to the BIA
Note that individuals convicted of aggravated felonies under INA §101(a)(43) face significantly restricted access to relief options, making early legal intervention essential.
Voluntary Departure as an Alternative
In some cases, voluntary departure may be preferable to a formal order of removal. Under INA §240B, eligible individuals may be granted up to 120 days to depart voluntarily, which avoids the long-term bars associated with a formal deportation order. This option is typically unavailable to those convicted of aggravated felonies.
This material is for informational purposes only and does not constitute legal advice.
Frequently Asked Questions
Can a green card holder be deported for a felony conviction?
Yes. Lawful permanent residents (green card holders) can be placed in deportation proceedings for felony convictions, especially aggravated felonies under INA §101(a)(43). However, LPRs may still qualify for cancellation of removal under INA §240A if they have been a permanent resident for at least 5 years, have resided in the U.S. continuously for at least 7 years, and have not been convicted of an aggravated felony. Consult an attorney immediately if you receive a Notice to Appear.
What happens if I miss the 30-day deadline to appeal a deportation order?
Missing the 30-day BIA appeal deadline is serious but not always fatal. You may file a Motion to Reopen within 90 days under 8 CFR §1003.23, or seek an exception based on ineffective assistance of counsel or changed country conditions in asylum cases. An attorney can evaluate whether any exception applies to your situation.
Does a drug charge always lead to deportation?
Not automatically. Minor first-time drug possession offenses — particularly for personal use — may qualify for an exception under INA §237(a)(2)(B). However, drug trafficking and distribution convictions are treated as aggravated felonies, which severely limit available defenses. The specific substance, quantity, and nature of the charge all matter. An immigration attorney must review the exact charges.
Can I apply for asylum if I have a criminal record?
Yes, in many cases. A criminal record does not automatically bar asylum, but certain convictions do. Under INA §208(b)(2), asylum is barred for individuals convicted of a 'particularly serious crime,' which typically includes aggravated felonies. Lesser offenses may not trigger this bar. Withholding of removal under INA §241(b)(3) may also be available even when asylum is barred, applying a higher legal threshold but offering protection from deportation to a dangerous country.