DEPORTATION AND REMOVAL DEFENSE

REMOVAL PROCEEDINGS – Overview

A removal proceeding is an immigration court hearing to determine whether a noncitizen will be removed from the United States. Any person in the United States who is not a citizen of the country may be removed if she or he falls within one of the ground of inadmissibility or deportability prescribed in the Immigration and Nationality Act. Even a lawful permanent resident may lose his or her residency status and be removed from the United States if he or she violates certain immigration law provisions.

Commencement of Removal Proceedings in Immigration Court

DHS (Department of Homeland Security) initiates removal proceedings when it serves the individual with a charging document, called a Notice to Appear, and files it with the immigration court. The Notice to Appear orders the individual to appear before an immigration judge and provides notice of the removal proceedings, the alleged immigration law violations, the ability to seek legal representation at no expense to the government, and the consequences of failing to appear at scheduled hearings.

When the immigration court receives the Notice to Appear from DHS, the court schedules a removal hearing before an immigration judge. There may be one or multiple hearings, depending on what happens in the case. The two parties in the hearing are the individual named in the Notice to Appear and DHS. The DHS attorney represents the government and seeks to prove that the individual should be removed from the United States. The individual in removal proceedings may, at his/her own expense, seek a deportation attorney.

Master Calendar Hearing/Individual Merit Hearing

Removal proceedings begin with a “master calendar” hearing, where the immigration judge ensures the individual understands the alleged immigration law violations. Then, generally, the immigration judge will schedule an “individual” hearing, where both parties present the merits of the case to the immigration judge.

The outcome of many removal proceedings depends on whether the individual is eligible for relief from removal. Immigration law provides relief from removal to individuals who meet specific criteria. In most removal proceedings, individuals admit that they are removable, but then apply for one or more forms of relief. In such cases, individuals must provide that they are eligible for relief, such as cancellation of removal, adjustment of status, asylum, or other remedies provided by immigration law.

Immigration Judge Decisions

At the conclusion of the case, the immigration judge usually issues an oral decision, but on occasion will issue a written decision sometime after the hearing. Immigration judge decisions are made on a case-by-case basis according to U.S. immigration law, regulations and precedent decisions.

When the immigration judge grants the individual relief from removal, the individual may remain in the United States, sometimes temporarily and sometimes permanently. When the immigration judge orders the individual removed, DHS may remove the individual from the United States. However, an immigration judge’s decision may not be the final decision in the case because both parties have the opportunity to appeal an immigration judge’s decision in removal proceedings and in the other hearings and reviews specified above.

Appeals of Immigration Judge Decisions — BIA Review

Within 30 days of the immigration judge’s decision, either party or both parties may appeal the immigration judge’s decision to the BIA. The BIA decides the appeal by conducting a “paper” or record review; the BIA, generally, does not conduct courtroom hearings, though it may hold oral argument in selected cases.

Appeals of BIA Decisions — Federal Court Review

If the individual in proceedings disagrees with the BIA’s ruling, he/she may file an appeal (“Petition for Review”) with the appropriate federal circuit court of appeals. DHS, however, may not do so.