Removal proceedings are an administrative court process initiated by the Department of Homeland Security (DHS). The court proceedings are conducted by an Immigration Judge (IJ) who works for the Department of Justice. DHS initiates removal proceedings by issuing a document called a Notice to Appear (NTA). The NTA is served in person or by mail. The NTA contains factual allegations and charges under the Immigration and Nationality Act (INA) setting forth the reasons why DHS believes that the foreign national should be deported. Some of the more common reasons why an NTA is issued are that the foreign national entered the United States without inspection, overstayed a visa, violated the terms of a visa, made misrepresentations to obtain immigration benefits, or was convicted of certain crimes. The INA can be very unforgiving when it comes to the immigration consequences of certain criminal convictions. Certain criminal convictions can subject a foreign national to mandatory detention during removal proceedings and/or can make him/her ineligible for the relief from removal discussed below. Consequently, it is strongly advised that you consult with an experienced immigration attorney if you are a foreign national who has been charged with or convicted of a crime.
After DHS files the NTA with the Immigration Court, the foreign national will be scheduled for an initial master hearing before the IJ. At the initial master hearing, the IJ will explain the foreign national’s rights in the removal proceedings, including the right to be represented by an attorney. If the foreign national does not speak English, an interpreter will be provided by the Immigration Court. At the first or second master hearing, the IJ will ask the foreign national or his/her attorney to either admit or deny the factual allegations and charges contained in the NTA. If the IJ determines that the charges in the NTA are true, the IJ will ask if the foreign national will be applying for any defenses or relief from removal and will set a deadline for any applications to be filed with the Immigration Court. The foreign national will be given an instruction sheet on where and how to file his/her applications with any applicable filing fee. The foreign national will also be advised of his/her responsibility to comply with all fingerprint appointments in connection with the applications.
There are several defenses and applications for relief that a foreign national can litigate during removal proceedings to try to avoid deportation. Some defenses include motions to terminate removal proceedings, motions to suppress evidence, requests for prosecutorial discretion, and motions to administratively close removal proceedings. Even though the foreign national may have violated provisions of the INA that make him/her deportable, in many cases he/she may be eligible to file an application for relief from removal with the IJ. Some of the more common applications for relief from removal are adjustment of status to a permanent resident, asylum, withholding of removal, protection under the Convention Against Torture, cancellation of removal, special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA), Temporary Protected Status, waivers, and voluntary departure. Each application for relief has different legal requirements, and so it is advisable to consult with an experienced immigration attorney about your options and eligibility.
If the foreign national timely files his/her applications in accordance with the instructions given by the IJ, the IJ will schedule the case for an individual hearing. The individual hearing is an administrative trial where the foreign national and DHS present witnesses and evidence about the foreign national’s eligibility to remain in the United States. In many cases, the individual hearing is scheduled for several years into the future due to backlogs. The IJ will set deadlines for briefs, exhibits, and other pre-trial documents that need to be filed before the individual hearing. After hearing all of the evidence at the individual hearing, the IJ will issue a formal oral or written decision. If the IJ grants the application for relief from removal, the foreign national receives temporary or permanent permission to remain in the United States (unless DHS appeals). If the IJ denies the application for relief from removal, the foreign national has 30 days to appeal the decision to the Board of Immigration Appeals.