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Removal Proceedings

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Feb 25, 2019)

What is a removal proceeding?

Removal proceedings (formerly deportation and exclusion proceedings) are like court cases.  They are held in an immigration court before an immigration judge.  Topic image for Removal Proceedings Immigration courts are a part of the Executive Office for Immigration Review (EOIR) of the United States Department of Justice.

The Immigration and Customs Enforcement (ICE), which is an agency of the U.S. Department of Homeland Security (DHS), initiates removal proceedings against non-citizens (such as undocumented immigrants), in order to prove that they are deportable and to obtain a court order for their removal.  See Grounds for Removal.

In a removal proceeding, the court will decide issues pertaining to removability and the immigration status of the noncitizen. Among others, the immigration court

  • Decides whether the non-citizen is removable (deportable)
  • Adjudicates applications for relief from removal or deportation, including asylum, withholding of removal, protection under the Convention against Torture, cancellation of removal, adjustment of status, etc.
  • Reviews prior denial of DHS of an asylum application, if any
  • Decides or re-determines custody and bond issues

See 8 C.F.R. §§ 1240.1(a), 1240.31, & 1240.41.

Where is the removal proceeding held?

Removal proceedings are cases held before an immigration judge in an immigration court.  Currently, there are over 200 immigration judges in the United States in more than 50 immigration courts across the country.  See List of Immigration Courts Sometimes, courts are held at other locations, such as detention centers.

How does a removal proceeding start?

A removal proceeding starts, when ICE issues a Notice to Appear (NTA) and files it with the court. The Notice to Appear basically lists factual and legal allegations supporting the ICE's position that the noncitizen is removable.  The notice will include the following items:

  • The nature of the removal proceeding,
  • The legal authority for initiating the removal proceeding,
  • The allegations of fact listing the conduct which allegedly violates the law,
  • The charges, i.e., a listing of statutes that allegedly were violated,
  • The initial hearing date, time, and place,
  • A notice of opportunity to be represented by counsel at no expense to the government,
  • The consequences of failing to appear at the hearings, and
  • The requirement of providing a written record of address and telephone number.

Notice. Once you are in a removal proceeding, regardless of whether you have an attorney, you must inform the immigration court of any changes in your address and phone number within five (5) days. For this purpose, you should use Alien's Change of Address Form (Form EOIR-33/IC). If you were in detention when the proceeding first started and afterwards are released on bond, you must also file this form to list your phone number and the address where you reside.

Certain noncitizens may be deported summarily and without a removal proceeding.  See Expedited Removal.

What are the stages of a removal proceeding?

Commonly, the removal proceedings have three main stages:

  • Initial stage (or pre-trial stage), which starts with the initial hearing, commonly known as the Master Calendar Hearing (MCH),
  • Merit hearing (or individual hearing), which culminates in the court's final decision and judgment, and
  • Post-hearing (or post-trial), which may be necessary for filing motions to reconsider or reopen.

The immigration court's final judgment may be appealed to the Board of Immigration Appeal (BIA), and subsequently, and if warranted, to the appropriate United States court of appeals.

What happens at the initial hearing?

The removal proceeding starts, when ICE files the Notice to Appear (NTA).  The NTA will show the date, time, and place of the initial hearing.  The hearing is called a Master Calendar Hearing (MCH). This hearing is usually short, as several other cases are also scheduled for their initial hearing during the same court session.

At the initial hearing, you may address or challenge the issues raised in NTA, inform the court that you are planning to request some form of immigration relief, request additional time to retain an attorney, request a change of venue to a location closer to your home, and, if you are detained, request a bail determination or reduction.

Depending on the circumstances, the court may postpone the initial hearing to a later date or schedule you for an individual hearing (“merit hearing”), where you can present your claims for relief.

If you have not yet retained an attorney and request additional time to retain one, the court may postpone the initial hearing for a short period of time.  If you are the beneficiary of a pending immigration petition that would allow you relief, if granted, the court may postpone the initial hearing for sufficient time to allow the USCIS to decide your petition. In short, the immigration court may postpone the hearing for a short or a very long period of time, depending on the circumstances and the reasons that you may provide to support the request.

What happens at the individual hearing?

The individual or merit hearing is where you will have the full attention of the immigration judge. These hearings are substantially longer than an initial hearing.  This is where you may challenge the allegations raised in the NTA or present evidence (documents, witnesses, experts, etc.) supporting your claim for the immigration relief that you are seeking from the court. At the end of this hearing, the court will issue its opinion and judgment-- either verbally right then or in writing at a later date.

Individual hearings are usually scheduled in 4-hour blocks. Depending on the number of witnesses and exhibits that you wish to present, the amount of time that such presentation may reasonably consume, and the court's availability to schedule subsequent time slots, an individual hearing may take a long time (even years) to complete.

What happens during the post-hearing stage?

If after the conclusion of the individual hearing, one of the parties (you or ICE) discovers new facts, that party generally would have ninety (90) days from the date of the immigration judge's decision to file a motion to reopen the proceeding.

If after receiving the immigration judge's decision, one of the parties (you or ICE) believes that the court has misinterpreted the law or has made a factual mistake, that party would have thirty (30) days from the date of the immigration judge's decision to file a motion to reconsider.

If either you or ICE disagrees with the immigration judge's findings and conclusions, you would have thirty (30) days from the date of the immigration judge's decision to file an appeal with the Board of Immigration Appeals (BIA). The situation may readily arise where both sides would appeal the case to BIA. You may appeal denial of one relief, whereas ICE may appeal grant of another.  Note that filing a motion to reopen, or a motion to reconsider, does not change the deadline for filing an appeal.

How long the removal proceeding take?

Like any other court case, the removal proceedings can take from several months to a few years.

What kind of defenses and remedies are available at the removal proceeding?

For a discussion of defenses and remedies available in a removal proceeding, see Removal Proceeding Defenses & Remedies

What happens after the order of removal becomes final?

Once the order of removal becomes final, i.e., after the immigration court enters its final judgment and you exhaust your timely appeal, ICE would be required to remove you from the United States within 90 days.  If you are found to have committed certain criminal acts, you will be detained until your actual deportation.

If you fail or refuse to timely apply for travel documents necessary to deport you to your home country (or destination country), the removal period may be extended and you may be kept in detention.

If you have been deported but have a new basis upon which to seek a visa or green card, you may apply for special permission to seek readmission to the United States (using Form I-212).  Approval of an application for readmission, however, is not guaranteed.  In fact, it is very difficult to obtain, especially since the underlying reason for the deportation will be considered.

Would I accumulate days of unlawful presence while in removal proceeding?

Initiation of a removal proceeding has no effect on the accumulation of days of unlawful presence. It neither triggers nor suspends accumulation of days of unlawful presence.  So, if you were accumulating days of unlawful presence before the initiation of the removal proceeding, you will continue doing so after the removal proceeding starts.

What are the consequences of being removed (deported) out of the United States?

Upon removal, you will be inadmissible (i.e., you may not return) to the United States for a period of 5, 10, or 20 years or permanently, depending on the circumstances.

If you are inadmissible because you have been previously removed (or deported) and wish to apply for a new visa, you must request permission (or consent) to reapply, using Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212).

Related Topics:

Removal Proceeding Procedure & Defenses

Undocumented Immigrants

Grounds for Removal

Removal Proceeding Defenses & Remedies

Removal Proceeding Defenses & Remedies for Undocumented Immigrants

>

U.S. Immigration and Customs Enforcement (ICE)

Arrest & Detention by ICE

Immigration Bond

Expedited Removal

 

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