Removal Proceedings

Removal proceedings – formerly known as “deportation proceedings” or “exclusion proceedings” – are the legal process by which DHS moves to deport or bar a noncitizen from the United States. Once a branch of DHS determines that a noncitizen falls within one of the categories of inadmissible or deportable aliens described in the Immigration and Nationality Act, it will usually commence removal proceedings against the noncitizen. There are countless scenarios under which DHS will commence removal proceedings against a noncitizen, some of which include:

• A lawful permanent resident makes an application for naturalization to U.S. Citizenship and Immigration Services (USCIS). In the course of adjudicating the application, the USCIS officer alleges that the noncitizen committed fraud in obtaining her green card many years before and is therefore deportable.

• A noncitizen is working at a construction site when agents of Immigration and Customs Enforcement (ICE) carry out a workplace raid. The noncitizen is determined to lack proper documents to be in the United States and is charged with being deportable.

• A lawful permanent resident arrives at a U.S. airport after vacationing abroad. The Customs and Border Protection (CBP) inspector discovers that the noncitizen has a criminal conviction related to controlled substances from many years ago and charges him or her with being inadmissible.

• While serving a prison term for a state criminal conviction, a lawful permanent resident is interviewed by ICE agents who determine that his criminal history render him deportable.

• A noncitizen fleeing political turmoil in his home country arrives at a U.S. airport without a proper visa and requests asylum. CBP charges the noncitizen with inadmissibility and refers him to an immigration judge for an asylum hearing.

Removal proceedings are generally commenced by DHS serving a document known as a “Notice to Appear” (NTA) on the noncitizen. Comparable to a complaint in criminal court, the NTA details the factual allegations against the individual that form DHS’ render the noncitizen removable and the section(s) of the Immigration and Nationality Act under which DHS seeks to remove him. The noncitizen will then have the opportunity to appear at hearings before an Immigration Judge. During these hearings DHS will be represented by an ICE trial attorney and the noncitizen will have the right to his or her own attorney.

In the initial hearings, known as master calendar hearings, the noncitizen will have the opportunity to challenge the allegations and/or charges in the NTA. Such challenges can be critical to the noncitizen’s defense, as DHS may base the NTA on incorrect facts or attempt to lodge an inappropriate or unsustainable charge against the noncitizen. For example, DHS may charge a noncitizen with deportability as an alien convicted of a fraud crime where the loss to the victim exceeded $10,000 (aggravated felony), when in fact the loss to the victim was substantially less than $10,000; a successful challenge to the aggravated felony charge in this case may lead to termination of proceedings and release from ICE custody.

If the Immigration Judge sustains one or more of the charges of removability against a noncitizen, the noncitizen will have the opportunity to apply for “relief from removal” which, if successful, will permit the noncitizen to remain in the United States. There are numerous forms of relief from removal, including cancellation of removal, adjustment of status, waivers (e.g. 212(c), 212(i), 212(h), 237(a)(1)(H)), asylum, withholding of removal, and naturalization. In all cases, the Immigration Judge will make a decision as to whether the noncitizen is in fact eligible for the relief sought.

Should the Immigration Judge rule – often over the objection of the ICE attorney – that the noncitizen is eligible to apply for the relief sought, the noncitizen will be given a period of time to prepare and file the actual application. The Immigration Judge will also set the noncitizen’s case down for a bench trial known as an “individual hearing.” At this individual hearing the noncitizen can testify in support of her application for relief and present character, factual and expert witnesses. The government may also present witnesses against the noncitizen, such as a Border Agent or forensics expert.

In busy jurisdictions like New York or Miami it can take several years before proceedings are concluded. Nevertheless, at the conclusion the Immigration Judge will render a decision to either grant or deny the noncitizen’s application(s) for relief. A favorable decision will often bring the removal case to a close and permit the noncitizen and his or her family to move on with life in the United States. However, ICE will often appeal decisions in favor of the noncitizen to the Board of Immigration Appeals, while the noncitizen may choose to do the same where the Immigration Judge denies his or her application for relief. Appeals to the BIA can be expected to take one to three years.

Even where the BIA rules against the noncitizen, there may be the option of seeking review of the denial by a federal district court or Circuit Court of Appeals. It is not uncommon for an immigration-related case to reach the United States Supreme Court (e.g. Padilla v. Kentucky, 130 S.Ct. 1473 (2010), Judulang v. Holder, 132 S.Ct. 476, 477 (2011)).