What To Expect During Removal Proceedings
A removal proceeding, also known as deportation, is the legal process of expelling a non-citizen from the United States or sending them back to their home country. This legal repercussion often comes as a consequence of the commission of certain acts, such as violations of U.S. immigration laws or criminal laws.
U.S. Citizenship and Immigration Services (USCIS) is the government agency that handles lawful immigration into the country. Meanwhile, the U.S. Immigration and Customs Enforcement (ICE) is responsible for enforcement and removal operations. The Executive Office for Immigration Review (EOIR) oversees immigration court procedures. Due to the complex rules surrounding this proceeding, it can feel daunting and challenging.
This article aims to break down the removal proceedings into easily understandable steps.
Step One: Receipt of Notice to Appear
The removal proceeding begins with issuing and filing a Notice to Appear (NTA). The NTA is a charging document instructing you to appear before an immigration judge. The U.S. Department of Homeland Security (DHS) issues and files this document with the immigration court.
Note that the NTA has various functions in an immigration case. It explains why the U.S. government thinks you are deportable. It also gives notice of the issues you must look out for when presenting your case before the immigration court. Thus, it is crucial to respond promptly to NTA, as delays could cause severe consequences.
The notice tells the individual to appear before an immigration judge and includes the following information:
- Nature of the proceedings
- Legal authority under which the proceedings are being brought
- Foreign national's alleged acts that violated the law
- Charges filed against the foreign national and the statutory laws that have been allegedly violated
- Foreign national's ability to be represented by an attorney at his/her own expense
- Consequences of failing to appear at scheduled hearings
The removal proceeding starts after filing the NTA in the immigration court.
Step Two: Attending Master Calendar Hearing
The first hearing in an immigration case is often called the master calendar hearing. This can be one or a series of hearings before the removal trial. Here, the judge may set the schedule for your case, including waiver submission or eligibility for other types of defense against removal.
After the initial master hearing, a foreign national can set future master hearings to secure additional documents, prepare evidence, conduct discovery, or await the status of the pending application with the USCIS. Typically, during a master hearing, an immigration judge will ask either the foreign national or their lawyers the following questions:
- Foreign national's name
- Foreign national's address
- Whether the foreign national wants the attorney next to them to represent the foreign national in these proceedings
- Whether the foreign national understands the language of the proceedings or requires a translator
- If the foreign national requires a translator, in what language would the translation be needed
Can You Get Deported at Your Master Calendar Hearing?
During the master calendar hearing, the immigration judge will ask you to admit or deny charges as reflected in your NTA. The judge rarely issues a final order of removal or deportation during this part of the proceeding. Oftentimes, the court will set another date and send a written notice of your next hearing.
However, failure to appear at the master calendar hearing or any other scheduled hearing could cause you to lose your right to defend your case. It could result in removal from the United States.
Sometimes, the master hearing can be the only one a foreign national receives. If a foreign national admits to sufficient facts that allow a court to find that removal is proper, the master hearing will be the foreign national's final hearing.
Step Three: Individual Hearing
The trial during a DHS deportation case is called the individual hearing. During the individual hearing, the U.S. government will present pieces of evidence against you for removal. As a defense, you may seek different forms of relief, including cancellation of removal, voluntary departure, or seeking asylum status. Note that each form of relief has specific eligibility requirements. This may include demonstrating a credible fear of persecution for asylum seekers and maintaining good moral character.
Like a trial, the foreign national or attorney must make an opening statement, examine witnesses, and prepare exhibits. The hearing will also depend on the charges against the immigrant. For instance, if the individual committed aggravated felonies or other criminal convictions, the court may handle the merits hearing following criminal procedures.
The immigration court has to prove that you are removable or deportable from the country, but if you fail to attend the hearing the immigration court might grant your removal. Keep track of the hearing date and update your address with the USCIS if it changes.
Step Four: Attend Any Extra Court Hearings
Depending on your case, you may be required to attend additional hearings. Each of these hearings serves a specific purpose. Although it is not applicable in all cases, it is helpful to learn in case you encounter one of them:
Bond Redetermination Hearings
In some cases, a foreign national detained by DHS can be released from custody upon bond payment. A bond, for legal purposes, is a sum of money paid as bail, which a person forfeits if they fail to appear at a required hearing. Initially, the bond is set by DHS. However, it is not final. You can request a bond hearing to adjust the amount based on several factors. These factors may include your employment situation, immigration status, and whether you are dangerous to the community.
During the bond hearing, the immigration judge has the authority to re-determine the bond amount set by DHS. A decision of a bond hearing can be appealed by either the foreign national or DHS to the Board of Immigration Appeals (BIA).
Bond hearings are a separate proceeding from the removal process. It is a temporary measure for your release from detention until you appear in immigration court.
The USCIS reviews the provided information to decide if there were reasons the person should not have been a permanent resident at the time they received their status. Once the LPR's status is rescinded, the USCIS will issue a Notice of Intent to Rescind (NOIR). The NOIR will reflect why the individual is not eligible for adjustment of status.
Forms of Relief From Removal
Navigating the different forms of relief can be complicated. Each of these relief have specific criteria. They may also require further documentation to support your request.
The following are the various forms of relief available to foreign nationals undergoing deportation or removal:
Motion to Reopen
After the immigration judge issues an unfavorable decision, you may file a motion to reopen the case. This statutory proceeding allows you to ask either the Board of Immigration Appeals (BIA) or the immigration judge to consider the unavailable evidence. The motion may also serve as a request to vacate the existing final order.
You may present new facts supported by documentary evidence in the motion to reopen.
Stay of Removal
An immigration judge or the DHS can grant a stay of removal. This temporarily pauses the deportation or removal of an immigrant for various reasons. Among the cited reasons for a stay of removal are pending appeals, humanitarian reasons, or medical emergencies. The DHS, through the U.S. Immigration and Customs Enforcement (ICE) assesses the admissibility or inadmissibility of an individual for a stay of removal. ICE may ask you for evidence or documentation to support this application.
Failure to file or submit the application and documents required may result in denial of the application for stay of removal. This document by ICE provides detailed information about the application for a stay of deportation or removal.
Cancellation of Removal
Cancellation of removal is a form of pardon wherein the immigration judge allows a person to stay in the U.S. as a lawful permanent resident (LPR). This type of relief comes in two forms. The first one is available to LPRs who stayed in the U.S. for at least seven years and became removable. The second one is available to undocumented immigrants staying in the U.S. for at least ten years.
For the latter, other than the 10-year requirement, they should also prove that deportation from the U.S. could cause exceptionally unusual hardship to his or her family members living in the United States.
Another form of relief is withholding of removal. Here, the individual has the burden of proof to show that he or she will face prosecution in his or her home country. The immigration judge conducts the hearing to determine whether there is enough evidence to support the case and to withhold removal.
All foreign nationals in the U.S. may apply for asylum if they have a well-founded fear of persecution if they return to their home country. After a year of holding an asylum status, the asylee may apply for a green card if the conditions for asylum are still present. This process is discussed further in the article How to Get a Green Card as a Refugee or Asylee.
Adjustment of Status
Adjustment of status is wherein a foreign national may apply for LPR or green card status while they are present in the United States. This means they can become a permanent resident without returning to their home country to process their visa.
Step Five: Immigration Judge's Final Order
The immigration judge issues a final order after completing all the necessary hearings. If you receive an unfavorable decision, you will be removed or deported from the country. Note that you can file an appeal with an immigration court or opt for the other forms of relief as mentioned above.
However, if you do not appeal, the U.S. government will send you a letter informing you where and when to report for your trip out of the United States.
Seek Legal Help With Your Removal Case
Facing a removal or deportation proceeding can be daunting. From understanding the deportation process to learning about the intricacies of expedited removal, expert legal advice can be beneficial. Failure to understand these nuances could harm your immigration status and lead to deportation. Through this challenging process, it is best to seek legal advice.
An immigration attorney can assist you with understanding the intricacies of immigration laws. If you or your family member are facing deportation or removal, it is best to seek legal advice. An immigration lawyer can guide you in understanding U.S. immigration laws, such as the Immigration and Nationality Act (INA). They can provide tailored advice depending on your case and guide you throughout the process.
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Contact a qualified immigration attorney to help with deportation or removal proceedings.