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This article will help explain how removal proceedings work, describing the types of relief that are available in removal proceedings, and answering some of the basic questions you may have if you are placed in removal proceedings and you would like to know whether you can apply for immigration relief. We encourage you to talk to an experienced lawyer directly about your specific case in order to avoid any potential problems or complications.
How Do Removal Proceedings Work?
Before the alien is placed in deportation proceedings, the Department of Homeland Security (DHS) must serve the alien with a charging document, called a Notice to Appear (NTA). The alien in removal/deportation proceedings is called the “respondent.” NTA orders the respondent to appear before an immigration judge and provides notice of the removal proceedings, the alleged immigration law violations, the ability to seek available free legal attorneys, and the consequences of failing to appear at scheduled hearings.
DHS must file the NTA with an immigration court having jurisdiction over the respondent’s location. There are currently 29 immigration courts located in Arizona, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New York, North Carolina, Northern Mariana Islands, Ohio, Oregon, Pennsylvania, Puerto Rico, Tennessee, Texas, Utah, Virginia, Washington. Each immigration court handles cases for its geographical area, which sometimes encompasses several states.
When the immigration court receives the NTA from DHS, the court schedules a master hearing with an immigration judge. Typically, there are two hearings: a master hearing and an individual hearing. But there may be more than one hearing, depending on your situation.
“Master Calendar” Hearing
Once the immigration court schedules your removal hearing with an immigration judge, it means that your removal proceedings begin with a “master calendar” hearing. At the master calendar hearing, the immigration judge makes sure that you understand the charges and allegations against you, explains your rights and determines if there is a form of relief for which you will apply. Then, the judge schedules a date for individual (final) hearing, where you will present your evidence and arguments for relief (e.g. asylum).
After you attended your master calendar hearing, the immigration judge will schedule your “individual” (or “merits”) hearing. At the individual hearing, both parties (you and/or your attorneys and the attorneys from the DHS) present the merits of the case to the immigration judge. The merits of the case refer to the facts of your case and the law to support your arguments. It is important to remember that the outcome of your removal proceedings depends on whether you are eligible for relief from removal.
If you are in removal proceedings, and the immigration court already scheduled your removal hearing with the immigration judge, you may request relief from removal if you meet specific criteria. According to the U.S. Department of Justice, in most removal proceedings, you can apply for certain types of relief, if you are able to prove that you are eligible for the specific types of relief, such as cancellation of removal, adjustment of status, asylum, or other remedies provided by immigration law.
Examples of Relief That You Can Request from the Immigration Judge
Discretionary relief means that the relief will be granted or approved at the discretion of the immigration judge. According to the U.S. Department of Justice, once you are placed in removal proceedings and you are found to be removable by the immigration judge, if eligible, you may request one or more types of discretionary relief. There are four types of discretionary relief: voluntary departure, cancellation of removal, asylum, and adjustment of status. These types of relief are available during a hearing before the immigration court. To apply for this discretionary relief, you must show the immigration judge that you are eligible for this relief under the U.S. immigration law.
a) Voluntary Departure
According to the U.S. Department of Justice, voluntary departure is the most common form of relief from removal and may be granted by immigration judges and the DHS. Voluntary departure allows you, as a removable alien or immigrant, to leave the United States at your own personal expense and return to your home country or another country if you can secure an entry there.
This option can help you avoid possible future immigration consequences, such as having a deportation order and not being able to return to the U.S. for many years. Sometimes, if you are not eligible for any other relief, voluntary departure can be the only option to prevent a deportation order against you. It is important to remember that, if you are in removal proceedings, you must be formally granted voluntary departure. If you just leave on your own, you may be considered to have self-executed an order of deportation (removal).
It is important to note that once you are granted voluntary departure by the immigration judge, you must depart within the time specified by the immigration judge. Immigration judge has the discretion to set a shorter deadline. The general rule is that if you are granted voluntary departure prior to the completion of removal proceedings, you must depart within 120 days. If you are granted voluntary departure at the conclusion of removal proceedings, you must depart within 60 days. Also, if you choose to appeal a decision rather than to depart, the Board of Immigration Appeals (BIA) usually will extend an earlier grant of voluntary departure for 30 days.
Please remember that not all immigrants will be eligible for voluntary departure. If you are granted voluntary departure but fail to depart, you will be penalized. For example, if this is your first removal, you cannot lawfully return to the United States for 10 years. If you have been removed in the past, you cannot lawfully return to the United States for 20 years. If you have been convicted of an aggravated felony, you cannot lawfully return to the United States forever. To learn more about Voluntary Departure, please visit our related article titled “Voluntary Departure,” and the U.S. Department of Justice website.
b) Cancellation of Removal
Based on the U.S. Department of Justice, the cancellation of removal relief is available to lawful permanent residents (LPRs) and non-permanent residents. If you are an LPR, cancellation of removal may be granted if you:
- Have been a lawful permanent resident for at least 5 years;
- Have continuously resided in the United States for at least 7 years after having been lawfully admitted; and
- Have not been convicted of an “aggravated felony” as defined within the U.S. immigration law.
If you are a non-permanent resident, cancellation of removal may be granted if you:
- Have been continuously present for at least 10 years;
- Have been a person of good moral character during that time;
- Have not been convicted of an offense that would make you removable from the United States; and
- Demonstrate that removal would result in exceptional and extremely unusual hardship to your immediate family members (your spouse, parent, or child) who are either U.S. citizens or lawful permanent residents.
To learn more about Cancellation of Removal, please visit the U.S. Department of Justice website.
Under section 208(a) of the Immigration and National Act, the Attorney General may, at his discretion, grant asylum to an alien who qualifies as a “refugee.” To apply for asylum, you, as the asylum applicant, must demonstrate an inability to return to your home country because of past persecution and/or a well-founded fear of future persecution based on your race, religion, nationality, membership in a particular social group, or political opinion.
You will not be eligible if you failed to file an asylum application within your first year of the latest arrival in the United States, unless you have an explanation of why you failed to apply during your first year. The one-year bar can be waived if there are exceptional circumstances in your case, such as changed circumstances in your country, or if you had (or still have) a valid nonimmigrant status.
You will also not be eligible for asylum if you have been convicted of an aggravated felony, or are found to be a danger to national security. To learn more about asylum, please see our related articles titled “Asylum Overview” and “Asylum Application and Well-Founded Fear of Persecution.”
d) Adjustment of Status
According to the U.S. Department of Justice, the adjustment of status relief is available to change your status from a non-immigrant (i.e., tourist, business, temporary work, or study, etc.) to a lawful permanent resident (i.e., authorized to live and work in the United States permanently). If you have been previously admitted into the United States, you can apply to DHS for adjustment of status, for example based on your marriage to a U.S. citizen. If you are in removal proceedings, you can apply for adjustment of status with the Immigration Judge. To learn more about Adjustment of Status, please visit the U.S. Department of Homeland Security website.
e) Prosecutorial Discretion
In 2011, the U.S. Immigration and Customs Enforcement outlined their guidelines for detention and removal of undocumented immigrants, stating that the enforcement and removal policies should prioritize threats to national security, public safety, and border security. Immigrants who are low priority for deportation include veterans and members of the U.S. armed forces; long-time lawful permanent residents; minors and elderly individuals; individuals present in the United States since childhood; pregnant or nursing women; victims of domestic violence; trafficking, or other serious crimes; individuals who suffer from a serious mental or physical disability; and individuals with serious health conditions. If you do not have a criminal background and have ties to the community, you may be eligible to stay in the United States pursuant to prosecutorial discretion.
Available Types of Relief That You Can Request from either the Immigration Judge or the Board of Immigration Appeals
The U.S. Department of Justice notes that when the immigration judge orders the individual removed, the DHS may remove the individual from the United States. However, it is important to note that an immigration judge’s decision may not be the final decision in your case because both parties (you and DHS) have the opportunity to appeal the immigration judge’s decision in removal proceedings.
If you are given an opportunity to appeal the immigration judge’s decision in removal proceedings, you (or DHS) may appeal the immigration judge’s decision to the BIA within 30 days of the immigration judge’s decision. Please note that the BIA decides your appeal by conducting a “paper” or record review. In general, the BIA does not conduct courtroom hearings, but the BIA may hold an oral argument in select cases. When the BIA decides cases, it can dismiss (discharge) or sustain (uphold) the appeal, remand (return) the case to the deciding immigration judge, or, in rare cases, refer the case to the Attorney General for a decision.
Administrative relief is the relief granted (approved) at the discretion of the Board of Immigration Appeals (BIA). You can apply for administrative relief when the immigration judge issues an oral decision at the conclusion of your case at the immigration court or a written decision sometime after the hearing.
There are two types of administrative relief: motions to reopen or reconsider and stay of removal. Please note that you can also file the motions to reopen or reconsider and stay of removal with an immigration judge or the BIA.
a) Motions to Reopen or Reconsider
You can file a motion to reopen or to reconsider a previous immigration judge’s decision. You must file the motion timely with an immigration judge or the BIA. The purpose of a motion to reopen is to introduce new and additional evidence that is important and that was not available at the original removal hearing. On the other hand, the purpose of a motion to reconsider is to seek a reexamination of the decision based on alleged errors of law and/or fact.
Please note that you or DHS may file only one motion to reopen and one motion to reconsider unless an exception applies. A motion to reopen proceedings must be filed within 90 days of the final removal order. A motion to reconsider must be filed within 30 days of the date of the final order. It is important to remember that the filing of these motions does not postpone the execution of the removal decision unless a stay of removal (meaning the removal is being postponed) is ordered by the immigration judge, the BIA, DHS, or you seek to reopen an in absentia order (a decision made when the alien was absent at the proceeding).
To learn more about motions before the Immigration Court, please visit the U.S. Department of Justice Website. To learn more about motions before the Board of Immigration Appeals, please visit the U.S. Department of Justice Website.
b) Stay of Removal
Under section 240(b)(5) of the Immigration and Nationality Act, a stay of removal prevents DHS from executing an order of removal, deportation, or exclusion. Depending on the situation, a stay of removal may be automatic in some instances and discretionary in others. You are entitled to an automatic stay of removal if your case appeal is pending before the BIA. It is important to note that a removal order can proceed unless you apply for a stay of removal. The stay of removal must be granted by the immigration judge, the BIA, DHS, or a Federal court. To learn more about a Stay of Removal, please visit the U.S. Department of Justice Website.
Available Types of Relief That You Can Request from the Federal Circuit Court of Appeals
Judicial relief is the relief granted (approved) at the discretion of the appropriate federal circuit court of appeals. You can apply for judicial relief if you disagree with the BIA’s decision. You may file an appeal (“petition for review”) with the appropriate federal circuit court of appeals. If you decide to file an appeal with the federal circuit court of appeal, you must file the judicial appeal within 30 days from the date of a final removal decision. Because the procedures of judicial review in immigration cases are complicated, we encourage you to talk to an experienced lawyer directly about your specific case in order to avoid any potential problems or complications. To learn more about Judicial Review and Relief from the appropriate Federal Circuit Court of Appeals, please visit the United States Courts website.
It is important to hire a qualified and experienced immigration lawyer in the United States as early as possible to avoid potential problems and to plan the best immigration strategy for you and your family. Attorneys at I.S. Law Firm have provided immigration help to many immigrants and their families in deportation proceedings. To learn more about our services and for consultation, please contact us at +1-703-527-1779 or via e-mail: [email protected].