Removal proceedings are the legal process by which the U.S. government seeks to deport an individual, usually a non-citizen, from the country. The removal process typically begins with a “Notice to Appear” (NTA) before an immigration judge issued by the U.S. Department of Homeland Security (DHS). The NTA will state the reasons for the proposed deportation, which may include violation of immigration laws or involvement in certain criminal activities.
The NTA issued by the DHS generally includes details like:
The Nature of the Proceedings
This indicates that the proceeding is held under sections of the Immigration and Nationality Act (INA) that deal with removal proceedings.
Legal Authority
It would inform the recipient that they are an alien who is subject to removal/deportation based on immigration laws.
Alleged Immigration Law Violations
Here are a few examples:
- Overstaying a visa: For example, a person might enter the U.S. on a tourist visa that allows them to stay for six months. However, if they have stayed for a year without receiving an extension or changing their status, the NTA would allege this violation.
- Entering without inspection: This would be the case if the person entered the U.S. without going through a legal checkpoint or without valid entry documents.
- Criminal conduct: If the person has been convicted of certain types of crimes, including but not limited to aggravated felonies, crimes involving moral turpitude, or crimes related to controlled substances, they may be deportable.
- Fraud or willful misrepresentation related to immigration benefits: This would be alleged if the person, for example, lied during an immigration interview or on immigration paperwork, perhaps claiming to be married to a U.S. citizen when they are not.
The Charges
These are the specific sections of the law that the person is accused of violating.
The Requirement to Appear Before an Immigration Judge
The NTA will inform the person of their obligation to appear before an immigration judge on a certain date.
Consequences of Failing to Appear
The NTA would warn the person that if they do not appear for their hearing, they can be ordered removed in their absence (also known as in absentia).
Who Is Subject to Removal Proceedings?
Any non-citizen who is suspected of violating immigration or criminal laws is subject to removal proceedings. This removal includes undocumented immigrants, legal permanent residents (green card holders), and even some individuals who have temporary or provisional status in the United States.
What Can Be Expected During Removal Proceedings?
In removal proceedings, the government has the burden to prove that the individual is deportable. The individual in question, or their legal representative, can challenge the allegations and present evidence supporting their right to remain in the country. In some cases, they may also seek “relief from deportation,” which can involve various forms of protection such as asylum, adjustment of status, or cancellation of removal.
Asylum
Asylum is a form of protection that allows individuals who are already in the United States to remain here, provided they meet the definition of a refugee. This means they are unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution due to race, religion, nationality, membership in a particular social group, or political opinion.
For example, a journalist from a country where freedom of the press is suppressed might apply for asylum on the grounds that they face persecution for their political opinions expressed through their work.
Adjustment of Status
Adjustment of status is a procedure allowing certain aliens already in the United States to apply for immigrant status (to get a green card). One example could be an individual who initially entered the U.S. on a student visa and later married a U.S. citizen. The U.S. citizen spouse could petition for the foreign spouse, and the foreign spouse could then seek to adjust their status to a lawful permanent resident.
Cancellation of Removal
Cancellation of Removal is a form of relief available to certain long-time residents of the United States who can demonstrate that their removal would cause extreme hardship to a U.S. citizen or Lawful Permanent Resident who is a spouse, parent, or child. For example, a person may have lived in the U.S. for ten years, has a clean criminal record, and has a child who is a U.S. citizen and who has a severe medical condition that cannot be treated in the person’s home country. If that is the case, they might be eligible to apply for cancellation of removal.
Can the Results of Removal Proceedings Be Appealed?
Yes, the results of a removal proceeding may be appealed. If the immigration judge orders a person to be removed, they may appeal the decision to the Board of Immigration Appeals (BIA).
This appeal must be filed within a specific timeframe, usually 30 days from the date of the judge’s decision. If the BIA also rules against the individual, further appeals can be made to federal courts.
Here’s a general outline of how an appeal to the Board of Immigration Appeals usually proceeds:
- Notice of Appeal: If you disagree with the decision of the immigration judge, you can initiate an appeal by filing a Notice of Appeal to the Board of Immigration Appeals (Form EOIR-26) within 30 days of the immigration judge’s decision. This notice should include the reasons for the appeal.
- Brief Submission: After the Notice of Appeal is filed, the BIA will provide a deadline for the submission of a brief. This brief is a written argument detailing the legal and factual reasons why the immigration judge’s decision should be reversed. Although the brief is not mandatory, it is highly recommended as it is your opportunity to fully argue your case.
- Review by the BIA: Once your brief is submitted, the BIA reviews your case. This review is based on the record from the immigration court and your brief. Most cases are decided by a three-member panel. However, some are decided by a single board member. It’s important to note that the BIA does not typically conduct new hearings where testimony is given.
- BIA Decision: The BIA can affirm the immigration judge’s decision, remand the case back to the immigration court for further proceedings, or reverse the immigration judge’s decision. You will receive a written notice of the BIA’s decision.
If the BIA affirms the decision of the immigration judge, you may have further appeal rights to the federal courts. The process for a federal court appeal can be complex, and the deadlines are strict. It’s essential to work with an experienced immigration attorney if you wish to pursue this course.
Petition for Review
If you lose your case before the BIA, you can typically file a Petition for Review to the U.S. Court of Appeals for the circuit where your immigration court is located. This petition must generally be filed within 30 days of the final order of removal.
Judicial Review
The federal court will review the administrative record and may consider arguments that the BIA’s decision was legally or constitutionally incorrect. The court will then issue a decision.
Do I Need to Hire a Lawyer for Help With Removal Proceedings?
Removal proceedings can be frightening. Hiring a lawyer experienced in immigration law can significantly increase the chances of a favorable outcome. A deportation lawyer can help explain your rights, represent you in court, assist with paperwork, and provide guidance on potential relief from deportation.
Through LegalMatch, you can find an experienced immigration lawyer who understands your situation and can provide assistance. Don’t leave your future to chance – connect with a LegalMatch lawyer today and secure the best possible outcome for your case.
