Removal Proceedings

“Removal proceedings” are the court hearings in which an Immigration Judge decides whether an alien–called the “respondent” in the hearings– will be prevented from entering or remaining in the U.S. They are preceded by inspection at the border or investigation within the U.S., a charging document, and sometimes detention in a jail pending release a hearing or release on bond. They proceed with two types of hearings and conclude with an order of termination, relief or removal (and sometimes further detention pending removal). Appeals and motions may ensue. They are followed by return to existing status, receipt of permanent residence, or departure from the U.S. Attorneys are necessary, and we can help.

As much as removal proceedings may be feared, a worse fate is for those who can be removed without their protections, particularly through “expedited removal” for people seeking entry through fraud or lacking documents, “administrative removal” for certain criminals, and “summary exclusion” for stowaways, crewmen, visa waiver entrants, and suspected terrorists.

Initiating Removal

The first official step in removal proceedings is the filing and service of a “Notice to Appear” (NTA), which is the charging document like an indictment in a criminal case. The NTA describes the U.S. Department of Homeland Security’s reasons why the alien is either excludable or inadmissible, and it describes in a very general way rights and procedures to be faced. There is a blank for the time and location of a court hearing, but often a hearing is not yet set by the time it is served. It is accompanied by a form by which the alien must notify the authorities of his or her correct address or any change of address, so that future notices can be mailed there. A request beforehand to delay a hearing might be granted, but failing to appear at a scheduled immigration court hearing results in an “in absentia” removal order that normally can be overcome only by proof that the hearing notice was not delivered or that exceptional circumstances beyond the alien’s control prevented the appearance.

Attorney Representation

Like criminal cases for everyone, immigration court proceedings are high stakes actions. The substantive and procedural rules governing them can be incredibly complex. The choices faced in them are often counter-intuitive. Even many immigration lawyers do not deal with removal cases. Good counsel from immigration lawyers is essential, and we can help.

An alien being placed in removal proceedings has the right to legal counsel, but at no expense to the government. DHS is required to provide the “respondent” with a list of any “free legal service providers” who may have signed up with the court. There are non-profit agencies that make it their charitable business to represent aliens in removal proceedings. Some private attorneys also sign up, and some of those do provide some wonderful “pro bono” (free) help to needy alien respondents, but just because an attorney’s name is on the list does not mean free service will be provided to every alien respondent who calls.

ICE attorneys and the Immigration Court are required to send the alien’s attorney any papers when the attorney has given notice of representation with the alien’s consent. This means the respondent should make sure to keep the attorney informed of current contact information.

Government Custody and Criminal Aliens

As law enforcement officers, ICE and CBP agents can interrogate and arrest aliens with cause. Often ICE agents encounter someone who is already in government custody under the criminal system, and ICE places a “detainer,” commonly referred to as an “ICE hold,” which is an instruction to the custodial official not to release the alien without first giving ICE notice before releasing the alien, so that ICE can decide whether to take over the custody (and its expense).

Sometimes ICE decides not to take custody and allows the alien to be released, whether or not it has filed and served an NTA. When ICE does take over custody, it does not always immediately serve an NTA on the alien, and it may take an inordinate time after that to file the NTA with a court. With no NTA filed, counsel must take the initiative to file a motion for bond determination with an Immigration Court–usually the court having jurisdiction over the location of the alien. But substantial difficulty can arise for family members and counsel just to find out where ICE has taken the alien. A new bond redetermination hearing can be requested after a change in material circumstances.

ICE uses a wide range of facilities to detain aliens, ranging from hotel rooms to county jails to large designated ICE facilities. ICE applies uniform detention standards to its own facilities, is beginning to apply them to state and contractor-run facilities with whom it contracts, but refuses to apply them to facilities managed by the federal Bureau of Prisons.

When the grounds for removal involve certain criminal convictions or national security issues, the court may be powerless to require release on any bond at all. Aliens convicted of crimes generally must first serve their sentence of incarceration before being removed by ICE, and ICE has set up an “institutional hearings program” to conduct removal hearings on site at criminal detention facilities in order to avoid delays between completion of the sentence and actual removal. Federal judges may include an order of removal in a criminal order that makes an alien deportable.

Removal Hearings

The actual removal hearings occur in two stages. An “initial” or “master” hearing is like a criminal arraignment, in that the respondent states whether or not he admits the allegations of the NTA and describes any relief he will request, and the Judge sets an “individual” or “merits” hearing at which evidence will be taken. The alien faces a complex choice at the initial hearing whether to give up and request the opportunity for “voluntary departure” for up to 120 days or whether to fight the charges and have the maximum opportunity for 60 days at the end of the individual hearing. Deciding on strategies, including what kinds of relief to seek, can be quite confusing for the uninitiated.

Initial hearings may be by telephone (quite handy when the alien or attorney are far from the court), and individual hearings may be by videoconference (often despite objection by respondents). Special rules apply to detention and hearings concerning juveniles and incompetents.

Relief From Removal

ICE is not required to keep trying to remove any deportable alien it comes in contact with, and it frequently exercises “prosecutorial discretion” not to start, or to terminate, removal proceedings (also called “deferred action”). ICE may also agree to allow an alien “voluntary departure” without the 10 year bar on removed aliens, but in many cases a 3 or 10 year bar arises upon departure anyway, and there are other potential problems with it.

Many options are available for the alien to survive removal proceedings: Administrative closure for USCIS to adjudicate some petition (i.e., family or employment) or application (i.e., TPS), adjustment of status to permanent residence if the alien is eligible through an immigrant petition or otherwise, “registry” for people present since 1972, waiver of the removal grounds at issue, asylum, withholding of removal, voluntary departure, cancellation of removal for persons who have been well-behaved in the U.S. 7 to 10 years and have a U.S. citizen or permanent resident parent, spouse or child who would suffer “exceptional and extremely unusual hardship.” Many types of relief are discretionary and require the judge to weigh numerous factors. Rules for special scrutiny apply to aliens who marry after the initiation of removal proceedings because of the obvious temptation to marry for immigration purposes when the pressure is on.

Appeals and Motions to Reopen/Reconsider

Either the alien or the ICE may appeal an immigration judge’s decision to the Board of Immigration Appeals, which often takes many months or years to rule. Further appeal to federal court is possible in a narrowing range of cases. Removal is automatically stayed pending a BIA appeal, but in some cases release is stayed pending ICE appeal. Most appeals are handled on paper, and personal appearances for argument are rare.

A motion can be made to the court or BIA to reopen or reconsider a case based on newly available relief (i.e., a family or employment petition has been approved), a mistake in the decision, or changed circumstances. The law places severe restrictions on the number and timing of such motions. A motion or federal court appeal after BIA decision does not automatically stay actual removal, so that the respondent must specially seek a stay from BIA or ICE to prevent ICE from removing the alien before a court decision.

Actual Removal

ICE cannot always physically remove an alien after a removal order is final, often because the alien’s country does not want him back. Complex rules and even Supreme Court decision have been made about “indefinite detention” of such aliens. Those released pending actual removal can receive employment authorization.

If an alien is physically removed or departs the U.S. on his own following a removal order, he is barred from returning for at least 10 years, sometimes more. To return earlier without advance permission not only is a crime (which often is indeed prosecuted), but the prior outstanding removal order can be reinstated without hearing.

How We Can Help

Baker Donelson’s Immigration Group, having important academic knowledge and practical experience with removal matters, can help clients facing removal proceedings to wade through the procedural and substantive issues and chart a course to defend against removal, to request relief resulting in permanent residence, and to seek voluntary departure if necessary. Most of our immigration attorneys are experienced and comfortable presenting testimony, evidence and arguments to judges in trials, and we are not hesitant to seek federal court review where appropriate. In matters far from our physical offices, we may recommend and work with local counsel to reduce expenses and leverage local knowledge of court personnel and practice while providing the benefit of our familiarity with the case and our breadth of experience. Even while removal proceedings go on, we consider other ways to obtain relief or return. Meanwhile, we work to keep clients out of removal proceedings in the first place by maintaining and improving their lawful status.

Consult with us for assistance with a case.


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