Written by Jayson Elliott · Attorney, Bay Legal PC · CA Bar No. 332479 · Last reviewed April 2026
Defenses Against Deportation — What’s Available to You
Key Takeaways
- Multiple defenses may apply to your case — an attorney can identify which ones
- Cancellation of removal is available for qualifying LPRs and non-LPRs
- Asylum, withholding, and CAT protect people who face persecution or torture
- Post-conviction relief can eliminate criminal grounds for removal
- Even when deportation seems certain, voluntary departure may preserve future options
Cancellation of Removal
For LPRs: 7 years continuous residence + 5 years as LPR + no aggravated felony. For non-LPRs: 10 years physical presence + good moral character + exceptional hardship to qualifying relative.
Asylum
Protection for people facing persecution based on race, religion, nationality, political opinion, or particular social group. Must generally be filed within 1 year of arrival, with exceptions.
Withholding of Removal
Similar to asylum but with a higher burden of proof (“more likely than not” vs. “well-founded fear”). Not subject to the 1-year filing deadline. Does not lead to a green card but prevents deportation to the specific country.
Convention Against Torture (CAT)
Protects individuals who would face torture by or with the acquiescence of government officials in their home country. Available even for individuals with serious criminal convictions.
Adjustment of Status
If you are eligible for a green card through a family relationship, employment, or other basis, you may be able to adjust status in immigration court, preventing removal.
Prosecutorial Discretion
DHS attorneys have discretion to agree to favorable resolutions, including termination of proceedings, administrative closure, and stays of removal. Strong equities (long presence, U.S. citizen family, community ties) support requests for discretion.
Voluntary Departure
When no other defense is available, voluntary departure preserves future immigration options by avoiding a formal removal order.
Bay Legal PC — Removal Defense Attorneys
Bay Legal PC in Palo Alto handles removal defense cases throughout California. Free initial consultations available.
Get a Free Consultation →Frequently Asked Questions
How do I know which defenses apply to my case?
The defenses available depend on your specific immigration history, criminal record, family ties, and circumstances. An immigration attorney can evaluate your situation and identify all possible defenses.
Can I apply for multiple defenses at the same time?
Yes. In immigration court, you can and should apply for every form of relief for which you might be eligible. The immigration judge will evaluate each one.
What if none of the defenses apply to my case?
Even when no affirmative defense is available, you may be able to negotiate voluntary departure, seek prosecutorial discretion, or challenge the charges themselves.
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Jayson Elliott, Bay Legal PC · Palo Alto, California
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