Removal is a term used in immigration law that means basically the same thing as “deportation.” A non-citizen can be removed for various reasons, including committing serious crimes or violating the terms of their stay in the country.
The term “removal proceedings” now encompasses all deportation, exclusion, and deportation relief procedures. There is no longer a distinction between deportation and exclusion (not letting an alien into the U.S.). Instead, removal proceedings are generally the sole procedure when determining if an alien is deportable, inadmissible, or eligible for deportation relief.
Deportation/removal cases still account for roughly 80% of immigration judges’ workload.
What Types of Hearings Are Involved in the Removal Process?
An alien charged with violating immigration law will receive a “Notice to Appear” from immigration authorities. It initiates the process of determining whether or not the person should be removed. Notices to appear are basically orders requiring aliens to appear before immigration judges.
Aliens are also informed of:
- The nature of the proceedings that they will be attending
- A list of the alien’s alleged acts that may constitute violations of the law
- The individual’s right to an immigration lawyer
- The consequences of failing to appear at the hearing as scheduled
A person appearing before an immigration judge may have to participate in the following types of hearings:
- General Removal Hearing: This type of hearing usually involves a determination of whether the foreign national will be subject to removal from the U.S. and whether they are eligible for any form of relief from removal
- Bond Redetermination Hearing: This type of hearing applies only to aliens who are being detained by immigration or homeland security authorities. It is up to the immigration judge to decide whether or not to lower the bond amount set for the person’s detention. Hearings of this type may be appealed.
- Withholding of Removal Hearing: The immigration judge will determine if the alien is eligible for a “withholding of removal .” The actual removal of the alien will be withheld, delayed, or suspended. Before removal, administrative matters usually need to be resolved (for example, if the alien is currently involved in another legal proceeding).
Hearing conclusions are generally final. It is possible, however, to appeal unfavorable determinations under certain circumstances. The Board of Immigration Appeals (BIA) hears appeals.
What Is A Notice To Appear?
In an immigration law context, a “Notice to Appear” (“NTA”) must be sent to any person who will be under review for a removal hearing. In removal hearings, the court determines whether there are sufficient grounds for removal, such as those discussed previously. Important information regarding the removal hearing is included in the Notice to Appear.
Generally, removal proceedings begin when the NTA is delivered to the non-citizen. Immigration laws only require that the NTA be delivered in a timely and proper manner, either in person or by standard mail.
All summoned to appear for a removal hearing have a right to notice, meaning they should be informed of key information related to their case.
The Notice to Appear should include information such as:
- A description of the allegedly illegal conduct for which the person is being subject to removal;
- The time and place in which the person should appear before an immigration judge; and
- A list of any immigration laws that were allegedly violated
The first meeting in the immigration court is called the “First Master Calendar Hearing.” It is always recommended that the person being summoned make their appearance at the removal hearing with an attorney present.
A defect in a Notice to Appear could affect the outcome of any immigration court determinations. In addition, there may be a defect in how the NTA was served to the respondent, such as fraud or deceit.
It might be necessary to review or appeal the ruling of a case if the NTA states incorrect charges of criminal activity. The case may be suspended while a further review is conducted.
People who ignore validly delivered NTAs may face further consequences, such as the immigration court proceeding to issue a ruling without them being present. The respondent is generally unfavorable to such a ruling, called an “in absentia” ruling.
What Is the “Right to Notice” in a Removal Hearing?
Before any immigration removal hearings can begin, the alien being summoned has the “right to notice”. They have the right to be informed of their removal hearing request. An immigration judge will decide whether they will be deported at the hearing.
The right to notice is fulfilled when the government sends the alien a “Notice to Appear” (NTA). If personal service is not possible, the Notice to Appear can be mailed to the recipient.
How Are Removal Hearings Begun?
As soon as the Department of Homeland Security begins the removal proceedings, often through its Immigration and Customs Enforcement Division, or ICE, removal hearings begin. A non-citizen can learn that the proceedings have begun in several ways.
As part of the Notice to Appear, the DHS must also inform the alien of the following within the NTA:
- The name of the person requested to appear
- The nature of the hearing
- The alleged grounds for removal (such as illegal entry, the commission of a crime, etc.)
- The date, time, and place of the hearing
- Consequences of non-appearance at the hearing
- Person’s right to an attorney
The notice does not have to be translated into another language or sent through certified mail according to immigration laws.
How Do Immigration Authorities Know if an NTA was Received or Not?
Proof of attempted delivery must be provided, either by mail or in person, to the alien’s last address. The NTA can also be addressed to the alien’s attorney, if applicable. If a Notice to Appear is properly addressed and mailed in accordance with standard postal procedures, it is presumed to have been received.
What if the Notice to Appear Is Ignored or Disregarded?
An alien who rejects, ignores, or disregards the NTA could suffer serious consequences. Upon receiving the NTA, the government can begin an “in absentia order of removal” if the alien fails to appear at the hearing.
A removal order issued in absentia allows the government to start and end removal proceedings without the alien actually attending the hearings (“in absentia” means “in absence”).
To enforce the in absentia order of removal, the government must prove through clear and unambiguous evidence that:
- Written notice was definitely provided, and
- The alien is removable
An in absentia order can be triggered without the alien actually receiving the notice. It is sufficient as long as the NTA is delivered according to the standards listed above.
What Are the Consequences of an In Absentia Order of Removal?
In absentia removal orders are more severe than regular removal orders.
In absentia removal orders, for example, cannot be appealed. The alien will also be disqualified from receiving discretionary relief (such as adjustment of status) for the next ten years.
In absentia orders cannot be appealed, but they can be rescinded (canceled) under very specific circumstances. The alien must prove that they did not receive notice under immigration laws. It is very important for a person to understand their right to notice if they are undergoing removal proceedings.
Should I Hire a Lawyer for Issues With the Right to Notice?
If you have any questions or concerns regarding an immigration hearing, you may wish to contact an immigration lawyer immediately. It is especially important if you will face removal and have questions about an immigration court appearance notice. Protecting your rights is possible with the assistance of an experienced immigration attorney.
