When the U.S. government discovers that a person has entered the United States illegally, overstayed a visa, or otherwise violated U.S. immigration or criminal laws, it will likely initiate removal proceedings against that person. The process does not happen overnight. Before a non-citizen can be deported, the government must prove that deportation is necessary. This means that the non-citizen has an opportunity to argue that she should be allowed to stay, but she cannot do that effectively without a good understanding of the deportation process. This section gives an overview of removal and discusses the consequences of illegally reentering the U.S. after removal.
Notice to Appear
A deportation case typically starts with the issuance of a Notice to Appear (NTA). This document sets out the basic information about the immigrant such as their name and country of origin as well as the basis for deportation or removal. This notice, or a following notice, also schedules the first hearing.
At the first hearing, the immigration judge asks whether the immigrant is ready to proceed or needs time to find an attorney. If they need an attorney, the hearing is rescheduled. Once the immigrant has had an opportunity to get an attorney, or if they already have one, the judge verifies the facts on the NTA and asks for the immigrant's plea to the charges alleged. If the alien is eligible for a form of relief, they announce their intention.
Depending on the form of relief requested the case may be postponed to await response from the United States Citizenship and Immigration Service (USCIS) for an application, or an "individual hearing" is set if the application is among those that an immigration judge is permitted to adjudicate.
Individual Hearing
An individual hearing is similar to a trial. The accused has an opportunity to testify and to present witnesses and documents to support their case. At the end of the hearing the judge may deliver an oral decision, or issue a written one at a later date.
If the immigration judge rules against the immigrant, they may appeal to the Board of Immigration Appeals (BIA) within 30 days. BIA denials must be appealed in the appropriate U.S. Court of Appeals. A denial at this level can be appealed to the U.S. Supreme Court.
Voluntary Departure
If an alien has no other basis for relief or has lost all their other claims, they may request or be offered voluntary departure by the court. Voluntary departure is effectively an agreement that the alien will remove themselves from the country within a set amount of time. This allows more flexibility in preparing to depart the country and may avoid some penalties they might otherwise face. However, a number of reentry bars are not cured by voluntary departure and the consequences of a failure to depart are typically even more burdensome than other penalties the immigrant may have faced.
In addition to "failure to depart," other actions can automatically terminate a Voluntary Departure Order. The filing of an appeal, motion, or petition to review their case, and the failure to post bond automatically terminate the order. Aliens accepting voluntary departure should understand all the obligations and consequences of the order fully before entering into an agreement.
