Removal is the same as Deportation. A noncitizen facing a threat of being removed or expelled from the United States, does not mean that the impending removal is guaranteed. Noncitizens do have due process rights that allows them to contest their removal or apply for a form of relief from removal that could potentially stop the removal of the noncitizen. These types of proceedings are known as Removal Proceedings which are formal court proceeding held before Immigration Judges “IJs” at Immigration Courts across the United States where an IJ will determine whether a noncitizen should be removed from the United States because of an Immigration Law violation. If the IJ determines that the noncitizen is removable, the IJ will also consider whether there is a form of relief available to the noncitizen to potentially stop removal and if available decide whether the noncitizen deserves the benefit of such relief.
There are a number of steps associated with Removal/Deportation.
A noncitizen will be placed in removal proceedings after an Immigration Agent has identified the noncitizen as a noncitizen without permission to be present in the United States or as a noncitizen with Immigration status who violated an Immigration Law. Immigration Agents include Immigration Customs Enforcement officers, “ICE” who typically identify and detain noncitizens present within the United States and Customs and Border Protection Officers, “CBP” who detain noncitizens attempting to enter the United States or noncitizens encountered in close proximity to a United States border.
Once ICE or CBP agents identify and detain an individual for being a noncitizen that violated an Immigration Law, the ICE or CBP agent prepares a Notice to Appear, “NTA” which is the charging document that is served on the noncitizen and filed with the Immigration Court formally commencing the removal process. The NTA serves to inform the noncitizen of the following:
- The nature of the proceedings
- The alleged grounds for removal
- The person’s right to hire an attorney (at personal expense)
- The consequences of failing to appear at scheduled hearings before the Immigration Court.
Shortly after a noncitizen is detained and while an Immigration Agent is issuing the NTA, The Immigration Agent has the first call in deciding whether to release the noncitizen to allow the noncitizen navigate the Removal process while out of custody or to detain the noncitizen forcing the noncitizen to seek a custody determination from an IJ through a motion for bond or custody determination. Release can be based on a bond amount determination or release on the noncitizens’ own recognizance. At this stage, whether it be an Immigration Agent or an IJ, the continued custody or release of the noncitizen is dependent on a finding of whether the noncitizen is a potential flight risk and whether the noncitizen poses a danger to the community if released.
The flight risk determination is based on factors such as time the noncitizen has lived in the United States; past immigration related violations; any history for failing to appear to past court hearings; the noncitizen’s ties to the local community which can include work history and family that are United States Citizens or Legal Permanent Residents who depend on the noncitizen; likelihood of success in the removal case which could be based on whether the noncitizen will qualify for an application for relief from removal and likelihood of success in being granted the application for relief from removal.
With respect to the noncitizen potentially being a danger to the community, an IJ or Immigration agent will look at the noncitizens past criminal history, looking for criminal convictions that have violence as an element or convictions that indicate a potential to harm or kill members of the community such as a battery or assault related conviction and convictions related to driving while intoxicated. An IJ or Immigration Agent will analyze if any of these types of convictions exist; the number of these types of convictions and the recency of any conviction to determine whether the noncitizen is a danger to the community. A noncitizen without status that has lived in the United Sates for 10 or more years, with a United States Citizen spouse and children where the noncitizen qualifies for a form of relief such as Cancellation of Removal with a simple battery conviction from 5 years ago and steady work history will fair better in a custody determination case compared to a noncitizen without status that has lived in the United States for 5 years, with a battery conviction from 2 years ago a driving while intoxicated conviction from 1 year ago and no family in the United States.
There are also situations where a noncitizen will not qualify for release based on a conviction of certain crimes. These noncitizens will be required to defend their removal case while be detained. Many noncitizens that are Legal Permanent Residents that are placed in removal proceedings because of criminal conviction, may be subject to this type of mandatory detention.
A discussion of the different criminal convictions that can cause mandatory detention can be viewed by clicking here. Keep in mind that although these Legal Permanent Residents may be subject to mandatory detention, they may still be able to succeed in their removal proceeding if they qualify and present a strong application for Cancellation of Removal for Legal Permanent Residents. It is critical to speak to one of our experienced Immigration Attorneys with experience in Removal Proceedings to know whether the noncitizen will qualify for release and to prepare clear and persuasive arguments in support of the noncitizen’s release.
If the noncitizen is not released, then the noncitizen will be detained and will be required to defend the Removal Proceeding case while being detained in a local jail or detention facility contracted to hold and detain noncitizens with pending removal proceeding cases. In cases where the noncitizen is not released, the IJ will attempt to move the case along quicker with the goal to complete the case within a few months if not a shorter period of time.
If the noncitizen is released, then depending on the strategy in defending the case, the case could potentially take much longer than a detained case which can range from six months to a year or more depending also on the availability of the IJ’s schedule.
There will be at least two hearings a noncitizen will be required to attend. The first hearing is identified as the Master Calendar Hearing where the IJ requires the noncitizen to admit or deny the factual allegations and to either contest or concede to the charge of removability stated in the NTA.
In cases where a noncitizen with legal status is being removed where the charges in the NTA are being contested, the IJ will likely set a date to allow for submission of written argument by the noncitizen and government attorney to convince the IJ whether or not the client is removable from the United States. In the event that the challenge to the NTA is successful, the charges against the noncitizen will be terminated and the noncitizen will be allowed to continue to stay in the United States. If the noncitizen did not have any Immigration Status, the noncitizen will continue to be without status always under threat of being encountered and placed in removal proceedings by ICE in the future. If the removal case ends in termination, then the government will have 30 days to file an appeal with the Board of Immigration Appeals seeking that the IJ’s decision terminating the removal proceeding be overturned.
If the Immigration judge sustains the charge in the NTA finding that the noncitizen is removable the IJ will inquire whether the noncitizen will apply for an application seeking relief from removal that if granted would stop the removal of the noncitizen. If the noncitizen will apply for an application seeking relief from removal, the IJ will then set a date for the full presentation of the application for relief from removal which is known as the individual hearing or merits hearing. The IJ will usually set the date months if not a year after the master hearing or the hearing contesting removability allowing some time for the noncitizen to submit the application with any supporting documents in support of the application. On the date of the final hearing, the noncitizen will be allowed to present testimony and witness testimony in support of the application seeking relief from removal. If the noncitizen is detained, the case will generally follow the same process, the only difference being that instead of months to a year or more, the final hearing will be set weeks to less than a handful of months after the master hearing.
If the noncitizen’s application for relief from removal is granted by the IJ, then the government has 30 days to file an appeal to the Board of Immigration Appeals also seeking to have the IJ’s decision overturned. If the noncitizen’s application is denied by the IJ, then the noncitizen has 30 days to file an appeal with the Board of Immigration Appeals seeking that the IJ’s decision sustaining the charge of removability or denying the application for relief be overturned.
If the Board of Immigration Appeals sustains the IJ’s decision then the losing party, may be able to appeal the Board of Immigration Appeals decision to one of one of the United States Courts of Appeal having jurisdiction over the region where the Removal Proceeding was decided. It is important to understand that the Board of Immigration Appeals has authority to hear all issues heard by the IJ, but the different Circuit Courts of Appeal do not have unlimited authority to hear and decide every issue argued before the IJ or the Board of Immigration Appeals.
A decision from an appellate court can consist of a decision sustaining a lower court decision, overturning a lower court decision or remanding or sending back the case to the lower court with instructions to the lower court to correct the reason for the remand or to complete security checks on the noncitizen to issue a final order granting an application for relief.
At the end of the process, if the noncitizen does not win the case, the noncitizen will either be removed from the United States or if the noncitizen qualifies, depart voluntarily from the United States by a certain date.
Find more information on various immigration topics discussed in our blog.