What is removal?

Removal (formerly deportation) is an administrative proceeding usually conducted before an immigration judge or court (an official of the U.S. Department of Justice, Executive Office for Immigration Review) to determine an individual’s removability from or inadmissibility to the United States under U.S. immigration law. Before the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), deportation proceedings were used to determine whether a person could be deported from the United States. When IIRIRA took effect, deportation proceedings were replaced by removal proceedings.

If eligible, individuals in removal proceedings may apply for various immigration benefits which, if granted, can provide relief from removal. Potential relief from removal includes adjustment to permanent resident status, cancellation of removal, and certain waivers of inadmissibility. Eligible individuals may also seek asylum or withholding of removal under the Convention Again Torture, among other forms of relief.

How does a removal proceeding begin?

Removal proceedings are initiated when an alien or permanent resident (also known as the “respondent”) is served by mail or in person with an administrative summons called a Notice to Appear by U.S. immigration authorities (usually, U.S. Immigration & Customs Enforcement or ICE). The Notice to Appear indicates the legal grounds and factual basis upon which the government contends the respondent is removable. Legal grounds for removability generally include that the respondent entered the United States without inspection or illegally, remained in the United States beyond the terms allowed under a visa, committed one or more crimes that result in removability (even if the respondent is in lawful status), or is otherwise present in the United States unlawfully.

Among other things, a Notice to Appear contains a numbered list of factual allegations against the respondent. For example, a typical Notice to Appear might state:

  1. You are not a citizen or resident of the United States;
  2. You are a citizen and national of [respondent’s alleged home country];
  3. On [date], you pled guilty to [citation to criminal statute or statutes];
  4. Under Section 238 of the Immigration & Nationality Act, you committed an aggravated felony rendering you removable.

In addition to the factual basis for removability (for example, crimes allegedly committed by the respondent in the United States), the factual allegations of the Notice to Appear may also indicate whether the respondent previously filed any applications with the United States Citizenship & Immigration Services (CIS) and their disposition, and if the respondent presently holds or previously held any lawful status. The Notice to Appear also contains a charge of removability, which usually is a reference to the specific section of the Immigration and Nationality Act (INA) that the government is attempting to use to remove the respondent.

The Notice to Appear may or may not contain a court date for the respondent to appear and answer the charges contained therein. If no court date is listed, the respondent may be notified of the court date by mail or in person at a future date.

What is a master hearing?

The initial removal hearing, or master hearing, takes place before an immigration judge. The respondent may be represented at the master hearing by an attorney of his or her choosing. However, respondents in removal proceedings do not have a right to representation and will not be provided an attorney if they do not or are unable to hire their own counsel.

At the master hearing, the respondent will answer the answer the government’s charges by pleading to the factual allegations and charge of removability contained in the Notice to Appear. If the respondent is eligible to apply for any form of relief from removal (such as asylum or cancellation of removal), the respondent may request the relief and file any required applications for the relief at or before the master hearing. If the respondent is not eligible for relief from removal or does not request relief, the immigration judge may order the respondent removed from the United States.

If a respondent has filed an application for relief or has indicated to the immigration judge that he or she will be seeking a form of relief that is precluded by law, the immigration judge will set a merits hearing date. Typically, merits hearings are scheduled many months or longer after the master hearing depending on the type of relief requested, the individual court’s docket and whether a respondent is detained. For example, immigration judges in Atlanta, Georgia are currently scheduling removal merits hearings 18 months or more after master hearings. If, however, the only form of relief from removal available or requested is voluntary departure, the immigration judge will most often grant or deny voluntary departure at the master hearing or other time of the request.

What is a merits hearing?

At a merits hearing, also known as the individual hearing, the respondent again may be represented by counsel of his or her choosing and will be allowed to present his or her evidence in support of his request for relief or cancellation of removal. Typically, the immigration court will require the respondent to submit all documentary evidence in support of a request for relief in advance of the merits hearing. At the hearing, the respondent may also testify and call other witnesses in support of his or her application for relief, and may call witnesses. The Department of Homeland Security (DHS) is represented by a government attorney, who also questions the respondent and witnesses. The government’s attorney may also call witnesses in some cases, to rebut the respondent’s evidence or establish facts related to the charge of removability. The respondent’s and government’s attorneys will also typically be allowed to make oral arguments to the court in support of their respective positions.

At the conclusion of the merits hearing, the immigration judge may issue an oral ruling or decision or reserve ruling for later. If the immigration issues a written order after hearing, it would be served by mail on all parties.

If a respondent’s application for relief from removal is denied by the immigration court, the respondent may be eligible to appeal the denial to the Board of Immigration Appeals (BIA) within 30 days of the date of the decision. If appealed, the respondent’s removal determination will be made by the BIA. If no appeal to the BIA is filed and the immigration judge has ordered a respondent to be removed, the removal order becomes final 30 days after it is entered. A respondent with a final order of removal issued against him or her may be arrested and deported from the United States at any time.

Failure to appear at a removal hearing may result in an in absentia order of removal being entered by the immigration judge, unless the respondent provided the court with good cause for the failure to appear such as a serious illness. If the court excuses the respondent’s absence, a new hearing will be scheduled and noticed.

What is ICE custody or hold?

If a person is suspected of being present in the United States unlawfully, is considered to be removable from the United States, or is already under an order of removal, then ICE may issue an order to take that person into custody to await removal or other administrative action. Local, state and federal law enforcement agencies receive notice of ICE detention or “hold” orders. If someone under an ICE hold order is detained by a law enforcement agency, depending on the reason for detention or the criminal charges involved the person may be turned over to ICE and placed in custody at an ICE detention facility.

Persons in ICE custody who are in removal proceedings may seek to be released by posting a bond set in the discretion of an immigration judge. Absent such an order requiring ICE to release a person upon the posting of a bond, the detainee may remain in ICE custody until the disposition of his or her case. An experienced immigration attorney can assist someone in ICE custody by promptly filing a motion and seeking a bond hearing. For certain aliens with criminal convictions, ICE may deny bond if the alien is determined to be subject to mandatory detention. In such case, you may be able to challenge this determination before an immigration judge.

If you or a family member are currently in ICE custody, have received a Notice to Appear or are in removal proceedings, contact the Atlanta, Georgia immigration attorneys at Brownstein & Nguyen LLC today for a free consultation. We have over 20 years of experience successfully representing clients in all aspects of immigration law, including removal proceedings. Click here to see what our clients say about our experience and dedication in handling their legal matters.