Removal Proceedings

Being placed in removal proceedings can be scary and confusing, but it does not automatically mean that you will be required to leave the country. Many people, out of fear or nervousness, decide not to attend their scheduled hearing, and that only makes a bad situation worse, because it virtually guarantees that you will be ordered removed in your absence. On this page, I will explain how removal proceedings work and what your options are for remaining in the country.

Notice to Appear

The Department of Homeland Security uses a form called a Notice to Appear to initiate removal proceedings. Some people will receive this document in the mail, while others will receive it in person. It contains a laundry list of rights that you have while in removal proceedings, and it also warns of the consequences for failing to appear in immigration court. The Notice to Appear may even inform you of the date when you are required to appear at your first hearing, but that date is often tentative, so check your mail regularly to see if the hearing date has changed.

But more importantly, the Notice to Appear informs you of the reasons why you have been placed in removal proceedings. Specifically, it will contain a charge of removal, which is the actual immigration law that DHS believes you have broken, such as entry without inspection or overstay of a visa. The Notice to Appear will also contain a series of factual allegations to support that charge of removal. As I will explain, even if the charges and allegations are true, it does not necessarily mean you have to leave the country.

Once DHS has served you with the Notice to Appear and filed it with the immigration court, removal proceedings have officially begun, and the immigration court will now be in charge of setting your future hearing dates. For that reason, always keep the immigration court informed of your current address, using Form EOIR-33.

Master calendar hearings and individual hearings

Your first few appearances in immigration court are called master calendar hearings. They are typically brief hearings, and are meant to advise you of your rights, explain how removal proceedings work, and clarify the legal issues in your case. In these early hearings, you will be given an opportunity to find an attorney if you do not already have one.

Once it becomes clear what your case is about, the immigration judge judge will schedule an individual hearing, where both you and the government will be permitted to present witnesses or evidence in support of your legal contentions. Once the evidence has been presented, the immigration judge will often issue an oral decision on the spot, while both parties sit and listen. After the immigration judge has announced the decision, the parties must state whether they wish to appeal. Any notices of appeal must be sent to the Board of Immigration Appeals in Falls Church, VA, within 30 days of the immigration judge’s decision.

The two evidentiary stages of immigration court proceedings

Aside from the names of the hearings — i.e., master calendar vs. individual hearing — you should also know what kind of things you or the government may be required to prove throughout the course of the proceeding. In that regard, immigration proceedings can be broken into two distinct, evidentiary phases: removability and relief. The removability stage is to determine, as an initial matter, whether you have violated the immigration laws of this country, as alleged in the Notice to Appear. If you believe that the charges in the Notice to Appear are incorrect, and you succeed in fighting them, then your removal proceedings will be terminated, and that is the end of your case.

But if you are deemed to have violated the immigration laws of this country, the next stage is to determine whether you qualify for relief or protection from removal. In other words, even if you have violated U.S. immigration laws, you still may be allowed to stay in the United States, and in some cases, improve your immigration status. There is a laundry list of options that may be available to you, such as:

Cancellation of removal

This form of relief allows you to remain in the United States, and is generally available to long-time residents with strong family ties in the U.S. and a minor criminal history. It is only available on a one-time basis, so if you are granted this form of relief, you will not be given a second chance. 

Asylum

Asylum is available to those who cannot return to their home country because they have been persecuted in the past or fear persecution in the future.  The persecutors in question must be the government in the your home country, or forces the government cannot or will not control. In addition, asylum applicants must prove that the harm they fear — whether it took place in the past or may may take place in the future — has to do with their race, religion, nationality, membership in a particular social group, or political opinion. You must apply for asylum within one year of arriving in the United States, although there are certain exceptions, and asylum is not available to those with a serious criminal history or other overriding negative factors.

Asylum allows you, your spouse and minor children to stay in the United States, and after one year, you and your family may apply for green cards.

Adjustment of Status

Adjustment of status is the technical term for getting a green card. In general, those who were lawfully admitted to the United States, and who now have an approved immigrant visa petition, may apply for adjustment of status with USCIS. But if those same individuals find themselves in removal proceedings, they may apply for adjustment of status before an immigration judge.

But not everyone in removal proceedings may apply for adjustment of status in immigration court. If you were merely paroled into the country (as opposed to admitted), or if you entered the U.S. without inspection, then you must ask the immigration judge to either administratively close or terminate your proceedings so that you may pursue your green card through USCIS or consular processing abroad.

Waivers

The immigration laws provide for many different kind of waivers, and they are each designed to cure a very specific immigration violation. If, for example, you have been accused of obtaining admission to the United States by fraud or misrepresentation, there is a specific waiver authorized under INA sec. 237(a)(1)(H) to cure that particular violation. If you receive that waiver, and there are no other issues in your case, then your removal proceedings will be over, and you may continue to live in the United States.

Other benefits you may request in immigration court

Aside from the forms of relief discussed above, there are lesser benefits you may request in the immigration court, such as:

Withholding of removal and protection under the Convention Against Torture:

These forms of protection from removal, like asylum, are available to those who fear persecution or torture in their home country. But unlike asylum, they do not lead to a green card, they do not allow your family members to join you, and they do not prevent the government from removing you to a different country.

They are typically a Plan B for those who do not qualify for asylum, either because they did not file within one year of entering the country, they have disqualifying criminal convictions, or they cannot satisfy certain legal requirements for asylum.

Voluntary Departure

While it does not allow you to stay in the U.S., voluntary departure permits you to leave the country under your own free will and avoid having a removal order on your record. It is a good fit for those who do not qualify for any other relief from removal and wish to keep their options open in the future, should they wish to return.

Temporary Protected Status

This is a rare form of protection from removal that is only for people from certain designated countries and who satisfy other requirements. It only allows you to stay in the United States while your country’s designation lasts.

The countries that receive this designation are typically troubled areas in the world: Angola, Kosovo, Province of Sierra Leone, Bosnia-Hercegovina, Kuwait, Somalia, Burundi, Lebannon, Sudan and South Sudan, El Salvador, Liberia, Guinea, Montserrat, Syria, Guinea-Bissau, Nepal, Yemen, Haiti, Nicaragua, Honduras, and Rwanda.

Prosecutorial Discretion

This is something that you may request if you are in removal proceedings if there is no other relief available to you, and you have many sympathetic factors in your favor. But unlike other benefits you might seek in immigration court, it is DHS that decides to exercise prosecutorial discretion in your favor, not the immigration judge.

 

If you have been placed in removal proceedings, contact me today so that we can discuss your options. 

Call (480) 404-6334 or schedule a consultation online

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