Can a Deportation Order Be Reversed?

A deportation order is serious, but it doesn’t always mean the end of someone’s time in the United States. There are many legal options to reverse it or stop its effects.

Each case is unique, and success depends on the specific facts and legal strategy. Many people have been able to utilize the mechanisms available under U.S. immigration law to improve their immigration status.

If you or a loved one is facing deportation proceedings, this can be an unsettling time. An experienced immigration attorney can help mitigate uncertainties. You can share details of your situation with them confidentially. They can assess your eligibility for various forms of relief and help you determine the best way forward.

In this article, we’ll cover the main ways people overcome either an order of deportation or its impact. We’ll also discuss key requirements for each so you have an idea of which ones might work for you.

What Is a Deportation or Removal Order?

A deportation order is the old term for what is now called an order of removal. In the context of U.S. immigration law, many use these terms interchangeably, as we’ll do here.

A removal or deportation order refers to a legal decision that a non-citizen or foreign national must leave the United States. These orders often come from an immigration court after removal proceedings have taken place. An immigration judge makes this decision based on immigration law and the specific facts of each case.

Expedited Removal Orders

In cases of expedited removal at the border, a U.S. Customs and Border Protection (CBP) or other immigration officer may issue an order without a hearing. Unlike removal orders issued by an immigration judge, expedited removal orders generally may not be challenged.

Under extremely rare circumstances, however, someone can challenge an expedited removal order in federal court. These immigration cases usually involve violations of constitutional rights or cases of mistaken identity, where the person claims lawful status such as:

• U.S. citizen
• Lawful permanent resident
• Refugee
• Asylee

Similarly, options for relief from these expedited orders are typically limited to asylum if the person expresses a fear of persecution or torture in their home country.

The U.S. Department of Homeland Security (DHS) enforces all removal orders through agencies like Immigration and Customs Enforcement (ICE).

Challenging a Deportation Order

While not every case will succeed, there are several ways you can challenge or stop the effect of a (non-expedited) removal order. For the most part, they tend to be legally and procedurally complicated.

Eligibility for each legal avenue depends on facts like immigration status, criminal convictions, and available forms of relief for the circumstances under the Immigration and Nationality Act (INA).

Below, we’ll explore some common paths people use to try to reverse or halt removal.

How To Reverse a Deportation Order

Reversing or challenging an immigration judge’s removal order addresses the validity of the order itself, often through procedural means like appeals and motions.

Appeals

One of the first steps you can take is to appeal a removal order to the Board of Immigration Appeals (BIA). Like immigration courts, the BIA is part of the U.S. Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR).

Appeals are best for claims that the immigration judge made a mistake in applying the law or misunderstood the facts. If the BIA accepts your appeal, it will review the immigration judge‘s decision to see if there were any legal or factual errors. If the BIA agrees there was an error, they may send the case back to the immigration court for a new hearing or even overturn the deportation order.

You usually have 30 days from the removal order to file an appeal unless you waived your right to appeal during the hearing. A timely appeal triggers an automatic stay of removal. This pauses the deportation process, preventing you from being deported while the appeal is pending.

Appeals can take months, but are crucial for getting a second review of a removal decision.

Motions To Reopen

Alternatively, you may want to file a motion to reopen your case. A motion to reopen is a request for the immigration court or the BIA to reconsider the case due to new evidence or changed circumstances. This might include:

• Changes in your home country‘s conditions
• New facts about family members or relationships
• Evidence that affects your eligibility for relief
• Ineffective legal assistance

Your motion to reopen must show that the new evidence or facts could change the outcome of your case. For example, someone might have married a U.S. citizen, making them eligible for a green card through adjustment of status.

You’ll need to file your motion to reopen within 90 days of a final removal order. If there is no final removal order, the deadline is up to the judge or the BIA’s discretion.

Unlike appeals, there’s no automatic stay of removal for motions to reopen unless they involve an in absentia removal order. This is a removal order issued by the immigration court in the person’s absence. In other cases, you can request a discretionary stay of removal to pause deportation efforts.

Motions To Reconsider

A motion to reconsider is another type of motion you might use to challenge an order of removal. It asks the immigration judge or the BIA to review their own decision again because of a legal or factual error.

Unlike motions to reopen, motions to reconsider aren’t for new evidence. They are based only on the record from the relevant hearing. This option is best when the judge or BIA made a clear error in applying the law or overlooked something important in the case.

It’s not for simply disagreeing with the decision. You must:

• Show a real mistake
• Clearly explain what the mistake was
• Cite the law or facts that were misunderstood

Typically, a motion to reconsider must be filed within 30 days of the relevant decision. There is no automatic stay of removal when filing a motion to reconsider. As with motions to reopen, you can request a discretionary stay.

Relief From Removal

There are also options for relief from a removal order, even if you’re not arguing against its validity. Rather, you’re requesting the judge or BIA to grant you a form of legal status or protection that allows you to remain in the United States legally.

Examples of common forms of relief from removal include:

• Asylum/withholding of removal: For those who need protection from persecution or harm in their home country
• Cancellation of removal: For long-term residents who meet specific criteria and can show extreme hardship to U.S. citizen or lawful permanent resident family members
• Adjustment of status: For changes in immigrant status because of things like marriage to a U.S. citizen, sponsorship by a family member, or immigrant visas
• Voluntary Departure: For people wanting to avoid a formal or final removal order to potentially preserve future immigration benefits, like reentry options
• Waivers: For requests that U.S. Citizenship and Immigration Services (USCIS) forgive certain grounds of inadmissibility, like immigration fraud/misrepresentation

As with many available forms of relief, waivers require strong evidence of good moral character, ties to family members in the United States, and hardship they’d likely experience if you’re deported

Additionally, certain criminal convictions can disqualify someone for many forms of relief. These might include aggravated felonies, criminal offenses involving moral turpitude (theft/assault), and certain drug offenses.

Getting Legal Advice About a Deportation

Given the amount of discretion and complexity involved, it’s strongly recommended that you consult with an immigration lawyer as early in the removal process as possible. Don’t be afraid to be truthful with your attorney about your situation—the details you share with them are confidential, protected under attorney-client privilege. They can give you an idea of the types of relief for which you may be eligible. They can also assess whether you’ll be able to make a strong case to challenge a removal order.

Whatever stage you’re at in your deportation proceedings, timeliness is important to preserve your legal options. So, you’ll want to find someone you can trust sooner rather than later.

FindLaw’s directory of immigration attorneys can help connect with advisors in your area who practice in immigration law. You can review information about their background and experience, as well as ratings, by clicking on your state, then city.

An ally who can advocate for you and your family right now is critical. Enlist the help of one who can protect your interests.