Can a lawful permanent resident be deported?

You have your green card, but suddenly immigration has turned your world upside down and put you in deportation proceedings.  What now?

The Department of Homeland Security (DHS) has the power to bring a permanent resident (green card holder) to immigration court to ask an immigration judge to take away your status and deport you in certain situations.  For example:

  • Some criminal convictions make you “deportable.”
  • DHS may believe you lied or made a mistake in your green card application.
  • You may have claimed to be a US citizen or voted in a US election
  • You received your two-year green card (conditional residency), but didn’t file an I-751 petition to remove conditions on residency, or you filed a 751 but USCIS denied it.
  • You spent too long outside the United States and DHS accuses you of abandoning your green card.

How can you defend yourself and keep your status?

First: Just like in criminal court, the Department of Homeland Security has the “burden of proof” to show that you’re deportable. That means they can’t just deport you without a hearing.  The judge can’t move forward with your case unless the government presents “clear and convincing evidence” that you are deportable. 

Often, your first defense is “holding the government to their burden” – in other words, explaining to the judge why DHS’ evidence and/or legal argument are not strong enough.  DHS often shows up to court unprepared. For example:

  • DHS might not have proper records of your criminal conviction, or there is often a legal argument that your criminal conviction doesn’t fit under one of the complex categories that make you deportable;
  • DHS might allege that you got your green card through fraud, but you might be able to show that their evidence isn’t enough to show that there was actually any error in your application. There might also be an argument that, even though you made a mistake, it was an innocent misunderstanding or that it wasn’t relevant to your case.

Sometimes these arguments can be made in writing, and sometimes they require a hearing with a judge.

If the judge finds that DHS doesn’t have the right evidence or argument, she will “terminate” or “dismiss” the deportation case, and you keep your green card. You may then be eligible to naturalize (apply for citizenship), depending on your situation.

But what if the judge agrees with DHS and finds that you are deportable?  Now your case goes to the second stage, which is presenting an application or defense to deportation.  Depending on your situation, possible defenses might include:

  • An application for cancellation of removal (also called “42A” or “LPR cancellation”) if you have been in the US for 7 years, been a permanent resident for 5 years, and do not have certain disqualifying criminal convictions;
  • A stand-alone § 212(h) waiver for certain criminal convictions, if you were put in removal proceedings when arriving in the US after travel abroad;
  • A 212(c) waiver for certain criminal convictions before 1996;
  • A 237(a)(1)(H) waiver if you received your residency through fraud or mistake, and if you have a US citizen or permanent resident parent, spouse, or child;
  • An application for asylum, withholding of removal, or protection under the Convention Against Torture if you fear that you would be persecuted or tortured in your country of origin;
  • File an I-751 Petition to Remove Conditions on Residency with USCIS and ask the judge to wait for USCIS to process that application, or ask the judge to review a denied application;
  • “Special rule cancellation of removal” if your US citizen or permanent resident spouse abused you;
  • A request for prosecutorial discretion. Even if DHS has the power to deport you, their attorneys may decide to dismiss charges and let you keep your green card if they determine that your case is not a high priority.