Deportation and removal proceedings occur when the US government orders a person to leave the country. According to the US Immigrations and Customs Enforcement (ICE) agency, approximately 186,000 individuals were deported in 2020, a 30 percent decrease from 2019. About 92% of removals were individuals convicted of a crime or pending criminal charges.
The most common reasons for deportation include the following:
- Violation of green card status terms
- Marriage fraud
- Is in the US without proper legal immigration status
- Overstayed past visa expiration
- Has been involved in criminal activity
- They were inadmissible during adjustment of status or while entering the US
Removal proceedings begin when you receive a Notice to Appear (NTA) from the US government. You have a right to a court hearing and the right to defend yourself against deportation at that hearing. If you or someone you know may be at risk for deportation, it’s important to understand the process and the options available for the best chance at a favorable outcome.
What does a “Notice to Appear” mean?
A Notice to Appear contains a charge of removability and a list of allegations the government must prove. Typically, the Notice to Appear includes claims that you do not have valid immigration status or have done something to end your otherwise valid immigration status.
You must appear before an immigration judge who will hear the case against you. At this time, the US government must prove that the allegations against you are true, and the judge will decide whether to remove you from the United States or allow you to remain. However, you may be able to file a “motion to terminate.” A motion to terminate asks the court to dismiss the case if you can show that the government’s charges are substantively or procedurally defective. A motion to terminate may be filed as soon as the government files the Notice to Appear.
For some noncitizens, especially those arriving at the border without authority to enter the United States, deportation proceedings may begin while they are in a US Immigration and Customs Enforcement (ICE) detention center and without the benefit of legal counsel. They may be quickly deported or expelled from the United States by Department of Homeland Security (DHS) officials with a hearing or a judge ruling.
What should I expect during the removal hearing?
The NTA may include a hearing date for when you must appear before an immigration judge. If you do not show up on that date, you will automatically be ordered for removal. This initial hearing is known as a master calendar hearing. During the hearing, the judge will allow you to admit or deny the charges against you. If you plead not guilty, the government must prove its charges against you.
Master Calendar hearings are generally quick. However, the judge may schedule an Individual or Merit hearing to allow the government more time to provide evidence that you are in the country illegally or to hear your evidence proving the opposite. The individual hearing is for the judge to consider all the evidence and arguments and to hear testimony from the respondent or other witnesses. Generally, at the end of the hearing, the judge will issue a decision and the reasons for either granting relief from removal or ordering removal.
If an immigration judge finds you removable but grants relief from removal, you can remain in the United States. On the other hand, if the judge finds you not removable or if the government fails to meet its burden of proof, your case will be terminated. A termination can be “with prejudice,” which prohibits the government from bringing the same removal case again, or “without prejudice,” which allows the government to file a new “Notice to Appear” and make a second attempt at removal.
Am I eligible for “relief from removal?”
Both you and the government have the opportunity to appeal the judge’s decision. If the judge ordered a removal, an appeal provides an automatic stay on the removal order, meaning that you cannot be removed while your appeal is pending. You must file an appeal within 30 days of the judge’s decision. You may be eligible to apply for “relief from removal.” Some forms of relief from removal include:
- Cancellation of Removal: An immigration judge can “cancel” the removal order and permit you to remain in the United States as a lawful permanent resident. To be eligible, you must either be a lawful permanent resident for at least seven years before undergoing removal proceedings or are undocumented and have been in the US for at least ten years. In this case, you must prove that your removal will cause “extreme and exceptionally unusual hardship” for a family member who is a US citizen or lawful permanent resident.
- Asylum: You have been granted asylum and cannot be returned to your former country due to a legitimate fear of persecution.
- Withholding of Removal: You are not qualified for asylum but cannot be returned to your former country because your life or freedom is threatened due to your “race, religion, nationality, participation in a social group or political opinion.”
- Adjustment of Status: Obtaining lawful permanent resident status through an immigration judge since you are currently awaiting removal.
Most forms of relief from removal also come with lawful status, such as a lawful permanent residence or asylee status. However, some forms of relief, such as withholding of removal, only provide limited protections from removal and do not grant any permanent lawful status.
If an immigration judge finds you removable, denies relief from removal, and issues a removal order or grants voluntary departure at the end of the proceeding, you still have the right to appeal. A removal order is only considered final if the 30-day period to file an appeal has run out, or you waive the right to appeal. Some noncitizens are deported while they are still in the process of appealing.
US immigration law also allows for administrative or judicial review of the final removal orders within 90 days of the ruling. During this time, a “motion to reopen” is permitted and can be filed with an immigration judge or the Board of Immigration Appeals (BIA), allowing you to present the court with new facts. The new facts must be supported by affidavits or other documentary evidence, and the information presented must not have been available at the time of the previous hearing.
Some common grounds for reopening include the following:
- A change in the conditions of your former country
- You are a survivor of domestic abuse
- Your prior counsel was ineffective
- Your convictions were newly vacated
- Recent circumstances that have changed your eligibility for relief
- Recently issued case law has changed your removability or eligibility for relief
A motion to reconsider asks the court to reconsider its decision. You may file a motion to reconsider if you can demonstrate that the court incorrectly applied law or policy or that the decision was incorrect based on the evidence in the record of proceedings at the time of the decision. A motion to reconsider must be filed within 30 days of the final ruling.
Are there other forms of removal proceedings?
How long you’ve been in the country or if you’ve committed a criminal offense could affect your access to a hearing or options to apply for relief from removal.
Recent arrivals are usually subjected to a rapid “summary removal.” Immigrants apprehended within 14 days of entry into the US can be swiftly deported without a hearing under the expedited removal system unless they express fear of persecution in their former country. Similarly, individuals who have previously been deported can be subject to rapid “reinstatement of removal” if they cross the border again. An immigration judge does not have a role in the expedited removal process. Instead, an immigration officer decides whether the individual should be deported. It’s a quick process that may last only a few days.
Some removal proceedings are initiated based on nonviolent or minor criminal convictions and labeled aggravated felonies under immigration law. The noncitizen is still entitled to a hearing with an immigration judge but may be barred from many forms of relief from removal. Most noncitizens begin removal proceedings after completing any criminal sentence they have served. However, a small number begin removal proceedings while still serving their criminal sentence through the Institutional Hearing Program (IHP). And, in some rare cases, federal judges issue an order of removal as part of a criminal sentence.
Do I need a lawyer for my removal hearing?
An experienced attorney can make the difference between remaining in the United States and being deported. Unfortunately, the immigration court will not appoint you a lawyer, leaving you to choose the best legal representation for your case.
A reputable immigration lawyer on your side can help translate the complex immigration system and represent you against the government attorneys representing USCIS, one of the best-resourced federal agencies. According to an American Immigration Council (AIC) study, individuals with legal representation are five times more likely to pursue relief from removal and five times more likely to win their cases.
Looking for Immigration Help?
Stump & Associates is Oklahoma City’s most respected immigration law firm. With more than 30 years of experience, we know how to handle cases just like yours.