The Immigration Court Hearing
Removal & deportation proceedings are administrative proceedings meant to ascertain when someone is removable or deportable under the United States immigration law. Removal and deportation proceedings are heard in the Immigration Court (the Executive Office for Immigration Review) by an immigration judge. These judges are appointed by the Attorney General and are a part of the Department of Justice. Lawyers employed at the Department of Homeland Security (“DHS”), prosecute these cases.
The word removal was substituted for deportation when the immigration laws changed after the passing of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). In the past if a person were placed in a deportation proceedings, an immigration judge would decide whether a person could be deported from the United States. In 1997, when IIRIRA took effect deportation proceedings were replaced by removal proceedings. However, any cases commenced before IIRIRA's effective date continues to be processed as a deportation cases, using the laws in place before IIRIRA.
What Happens at a Removal or Deportation Hearing?
Removal and deportation proceedings begin when a respondent (usually an alien) is served with a “Notice to Appear” (NTA). This notice is the equivalent of a summons. The NTA is served by a U.S. immigration official to a person believed to have violated some part of the immigration laws. Such as: entering the United States without inspection (EWI), remaining in the United States past the time permited by the visa (I-94), committing some types of crimes, committed immigration fraud or otherwise violated the immigration laws.
The Notice to Appear (NTA) includes a list of factual allegations that the respondent can admit or dent.For example, a Notice to Appear may state:
1. You are an arriving alien
2. You are an alien present in the United States who has not been admitted or paroled.
3. You have been admitted to the United States, but are removable for reason stated below.
The Department of Homeland security alleges that you: (entered without inspection, overstayed the visa, etc.)
If the respondent committed a crime, the allegations in the NTA would list any crimes allegedly committed by in the United States as well as a charge of removability. It references the section of the Immigration and Nationality Act that is being used to use to remove or deport the respondent. Sometimes the NTA contains a specific court date, other times, the respondent would be notified of the court date at a future date.
Failure to appear for a removal hearing will result in an in absentia order of removal being entered by the Immigration Judge absent extenuating circumstances for the respondent's failure to appear, such as a serious illness.
The Master hearing
On the first date of the removal / deportation hearing, which is known as a master hearing, the respondent appears before the immigration judge. An attorney of his or her choosing may represent the respondent. However, unlike criminal cases, respondents in removal proceedings do not have a right to representation, and therefore an attorney will not be provided by the court if the respondent fails to retain his or her own counsel.
At the Master hearing, the judge reads the charges against the respondent and is expected to answer the charges against him or her by pleading to the factual allegations and admit or deny the charge of removability contained in the Notice to Appear. Depending on the facts of the case, the respondent may be able to apply for any relief available to him, (such as adjustment of status, asylum or cancellation of removal, including others). The respondent will be gieven a date to file any applications required for the relief. If the respondent is not qualified for any form of relief or if the respondent declines to request relief from removal, the immigration judge may order the respondent removed from the United States.
Once a respondent has filed an application for relief or has expressed to the immigration judge that he or she will be seeking a specific form of relief for which the respondent is prima facie qualified, the immigration judge set a merits hearing date. The merits hearing these days can be somewhere between one and two years following the Master Hearing. Depending on the court's docket. Nonetheless, if the one form of relief from removal available or requested is voluntary departure, the immigration judge will usually decide the request on the very same day.
The Merits hearing
The final hearing, known as the “individual hearing” is when the merits of the case is presented by both the respondent’s lawyer and the Assistant Chief Counsel for DHS. At the merits hearing, the respondent will have the opportunity to provide his or her documentary evidence (which is required to be submitted to the court prior to the date of the merits hearing) for the court's deliberation.
The respondent may also testify in support of his or her application for relief, and has the power to call witnesses. The Department of Homeland Security will questions the respondent and witnesses, and at times (albeit rarely) DHS may also call its own witnesses. At the finale of the merits hearing, the immigration judge renders a decision. At times his decision will be oral and pronounced on the same day as the merits hearing, or written and later served by mail on all parties.
If an immigration judge denies a respondent’s application for relief from removal, the respondent may be qualified to appeal that decision to the Board of Immigration Appeals (“BIA”) within 30 days of the date of the decision. If appealed, the judges decision is held in abeyance, while the respondent's removal proceeding continues at the appellate level at the BIA. If there is no appeal filed, the judge’s order for removal becomes final 30 days after the immigration judge has entered it.
A respondent with a final order of removal from an immigration judge that does not depart form the country is disposed to being arrested and deported from the United States at any time. If this happens the responded leave with an Order of Removal/Deportation, which in most cases means that the respondent may not return to the U.S for 10 years.