Practice Areas: Deportation/Removal Defense
(Immigration Court proceedings)
A removal proceeding is the process used by the U.S. Department of Homeland Security (DHS) to remove (deport) a foreign national from the United States, either because the foreign national is "inadmissible" (not allowed to enter the U.S. under the immigration laws) or because the foreign national is "removable" under U.S. immigration laws.
When DHS believes someone has violated immigration laws and decides to start an immigration court proceeding against that person, DHS first issues a Notice to Appear (NTA), or Form I-862, also referred to as the "charging document", listing the immigration violations the foreign national is charged with. DHS must file the NTA with the Immigration Court and serve the NTA on the individual in person. In certain circumstances, DHS can serve the NTA by regular mail.
The NTA states the date on which the immigration court hearing will be held and the location. The first hearing is a "master calendar hearing" at which the Immigration Judge will review the rights and obligations of the foreign national in the proceedings and ask the foreign national to plead (respond) to the government's allegations and charges in the NTA. If a foreign national has gotten a NTA and does not have an attorney, that person can ask the Immigration Judge for additional time to find an attorney before the case moves forward. If the Immigration Judge grants the request, the case will normally be given another "master calendar hearing" date.
IMPORTANT: If you have been served with a NTA, you should consult with an immigration attorney as soon as possible, even if an immigration official or law enforcement officer has said a lawyer is not needed in your case. Don't delay! You should make every effort to consult with an immigration lawyer before you have to respond to the government's factual allegations and charges in the NTA.
IMPORTANT: Anyone who has been served with a NTA must show up in court on the date and time specified - whether or not that person has an attorney! If the foreign national does not show up in court, the consequences can be very severe, including the entry of an in absentia order of removal. That means the Immigration Judge will order the foreign national deported from the United States. If you have been served with a NTA, you should allow plenty of time to get to the court and plenty of time to get through security. That way, you are sure to be in the assigned courtroom before the time indicated on your court notice.
The U.S. government can start immigration court proceedings against foreign-born individuals who are lawful permanent residents (people who have green cards), against persons who have nonimmigrant visas or temporary visas (student visas, for example), against individuals who have stayed in the U.S. beyond the time allowed by their visa (also called "overstaying a visa"), and against people who entered the U.S. illegally.
The Immigration Judge will set the case down for an "individual hearing" if the foreign national is challenging whether or not s/he is removable and/or if the foreign national is applying for "relief" from removal. The individual hearing is usually scheduled for an ample block of time to consider the foreign national's full case. At the individual hearing, the Immigration Judge will consider the evidence presented, including any challenges by the foreign national to the charges in the NTA and the request(s) for relief presented. The evidence presented to the Immigration Judge at the removal hearing is usually made up of written applications and supporting documents that are filed with the Immigration Court in advance of the individual hearing. Witness testimony is also presented at an individual hearing, including usually the testimony of the foreign national.
"Relief" from removal refers to the different remedies a foreign-born individual can request to avoid removal (deportation), but the list is fairly limited and not everyone qualifies for relief. Some of the more common forms of relief from removal are:
- Cancellation of Removal
- Adjustment of Status
- Asylum, Withholding of Removal and protection under the Convention Against Torture
- Deferred Action
- Voluntary Departure
Voluntary Departure frequently does not feel like relief to the foreign national who is in immigration court proceedings since it is a request by the foreign national to be allowed to depart the United States, at his/her own expense (you buy your own ticket), instead of being removed (deported) by the U.S. government. However, voluntary departure has a lot less negative legal repercussions than removal (deportation) by the U.S. government. For that reason, it is frequently sought by individuals who do not qualify for any other relief but who plan to come back to the United States in the future.
Anyone who has received a Notice to Appear in Immigration Court is strongly advised to retain the services of a knowledgeable immigration attorney so as to maximize the potential for a positive outcome.