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 or 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).
What Powers Does Immigration and Customs Enforcement Have?
Immigration and Customs Enforcement (ICE) is the enforcement branch of the Department of Homeland Security (DHS). ICE is similar to an immigration police force, as it investigates criminal offenses involving:
- Money laundering
- Passport fraud
- Child pornography
- Bomb threats
- Human trafficking
- Drug smuggling
- Gun smuggling
- Other offenses
ICE also has the right to detain those who are suspected of being a terrorist, human trafficker, or an illegal immigrant. ICE is allowed to arrest those suspected of breaking immigration laws.
ICE is also permitted to detain suspects for 48 hours without warrants or, in emergency situations, for a longer period of time. After this 48 hour period has passed, ICE is required to either release the suspect or start deportation procedures.
If someone is in local criminal custody and has an ICE detainer placed on them, they can be transferred to federal immigration custody even after they post a state court bond of $1,500 or more. In other words, paying a local criminal bond does not prevent ICE from taking someone into custody.
The detained party can challenge their detention and argue that they are not a terrorist, human trafficker, illegal immigrant, or member of any other group that ICE has the authority to detain or deport. There are legal complications that can extend a suspect’s detainment for a long period of time.
In certain cases, the detainee cannot be returned to their country of origin, which can result in indefinite detention. When this happens, the detainee can demand a writ of habeas corpus, which lets them challenge their detainment in a court of law.
It is important to note that the Miranda warnings that apply to criminal cases may not apply to immigration arrests because removal proceedings are considered to be civil proceedings and not criminal proceedings. The suspect, however, does have the right to remain silent just as those in criminal cases do.
If an ICE agent asks a suspect to conduct a search or asks any questions about the individual’s immigration status, the suspect can state verbally that they do not consent. They should not sign any type of document without having a lawyer review it first.
Noncitizens have these rights based on case laws that hold that, under the Fourth and Fifth Amendment, even in narrower immigration contexts, they are provided.
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 Immigration Laws May Apply to Removal and Deportability Proceedings?
There are various laws that may apply to removal and deportability proceedings, some broad laws that have been in effect and some newer laws that may be updated or changed in the future, especially with changes in presidential administrations. One broad immigration law that applies to most immigration issues, including removal and deportation, is the Immigration and Nationality Act (INA).
There are other executive orders and immigration laws that can affect an individual’s immigration issue. Because of the variations in the laws that may apply, and the possibility for frequent updates, it is important to consult with an attorney for any immigration issue. Below are some executive orders that may apply.
Executive Order Protecting the Meaning and Value of American Citizenship
This order would terminate birthright citizenship, when a baby born in the United States is automatically provided citizenship. This may be referred to as anchor baby status, although the term may be considered controversial.
Under this order, one parent has to be a citizen of the United States or a permanent resident in order for the child to be given birthright citizenship. The child born would not be given birthright citizenship if their parent is in the United States on a temporary visa.
This order is not being enforced due to a legal injunction.
Executive Order Protecting the American People Against Invasion
The order gives information and policies related to enforcement of deportation or removal, unlawful presence for those unlawfully present in the United States, and enforcing illegal entry. It also expands expedited removal.
Executive Order Guaranteeing the States Protections Against Invasion
People are prohibited from entering the U.S. at the southern border. The Department of Homeland Security (DHS) and the Secretary of State are allowed to admit applicants on a case-by-case basis.
Executive Order Realigning the United States Refugee Admissions Program (USRAP)
The ways applicants are allowed to enter the U.S. are limited. Similar to the previous order, applicants can be admitted on a case-by-case basis. USRAP is suspended pending further evaluation.
All immigration laws currently in force, including the executive orders discussed above, can directly affect an individual’s immigration removal proceedings. It is very important to know that immigration laws can be updated at any time, especially with changes in presidential administrations.
Because of these possibilities, it is very important to have legal advice when any type of immigration issue or question arises, including removal or deportation.
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.
What Types of Evidence (Documents) Are Required In Court for a Deportation or Removal Case?
When an individual is involved in removal proceedings, it is very important that they have the correct and necessary evidence and documents. These can help them establish their credibility and support their claims.
The most common categories of documents that can be helpful and may be required include:
- Personal Identification: This category may include birth certificates, marriage certificates, or government-issued IDs that establish identity and connections.
- Proof of Physical Presence: This category can include lease agreements, employment records, or utility bills that show residence in the United States for a specified period.
- Proof of Good Moral Character: This category can include criminal background checks, letters of recommendation, or certifications of community service.
- Proof of Family Ties: These documents that show someone’s relationships to citizens or permanent residents, such as, birth certificates of children born in the country or marriage certificates.
- Evidence of Hardship: This can include medical records that show the individual or their close family member has a serious health condition, a letter from a therapist, or other documents that show the hardship that would be caused by deportation.
There can also be other required evidence or documents for someone’s specific case. Because of the potential needed evidence, it is important to have help from a lawyer for any deportation or removal issues.
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.
These types of issues can be stressful and challenging, especially if English is not your first language. When you use LegalMatch, you can select your language needs and preferences so you will be able to clearly and effectively communicate with the attorney you choose.
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.
