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Removal proceedings are administrative proceedings to determine an individual's removability under United States immigration law. Removal proceedings are typically conducted in Immigration Court (the Executive Office for Immigration Review) by an immigration judge.
Prior to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), deportation proceedings were used to determine whether a person could be deported from the United States. When IIRIRA took effect in 1997, deportation proceedings were replaced by removal proceedings, though any cases begun before IIRIRA's effective date continue to be processed as deportation proceedings.
Persons in removal proceedings are called "respondents." Cases are decided by immigration judges, who are appointed by the Attorney General and are part of the Department of Justice. Removal proceedings are prosecuted by attorneys from the Department of Homeland Security ("DHS").
Notice to Appear
Removal proceedings begin when a respondent (typically an alien) is served with an administrative summons called a "Notice to Appear." The Notice to Appear is a dated document served by a U.S. immigration official (typically U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection) to a person suspected of entering the United States without inspection, remaining in the United States beyond the terms permitted by a visa, committing certain crimes which result in removability even if in lawful status, or otherwise being present in the United States unlawfully.
Among other things, a Notice to Appear contains a numbered list of factual allegations against the respondent. For example, a typical Notice to Appear might state:
- You are not a citizen or resident of the United States
- You are a citizen and national of [respondent's alleged home country]
- You were admitted to the United States on [month], [day] [year] as a B visitor for a period not to exceed 180 days.
- You remained in the United States beyond your term of admission.
These factual allegations may also list any crimes allegedly committed by the respondent in the United States, whether the respondent previously filed any applications with United States Citizenship and Immigration Services and their disposition, and if the respondent presently holds or previously held any lawful status. The Notice to Appear also contains a charge of removability, which is often a reference to which section of the Immigration and Nationality Act that DHS is attempting to use to remove the respondent. The Notice to Appear may or may not contain a court date for the respondent to appear and answer the charges contained therein. If no court date is listed, the respondent may be notified of the court date by mail or in person at a future date.
Failure to appear for a removal hearing will result in an in absentia order of removal being entered by the Immigration Judge absent extenuating circumstances for the respondent's failure to appear, such as a serious illness.
On the date of the removal hearing, also known as a master hearing, before the immigration judge, the respondent may be represented by an attorney of his or her choosing. However, an attorney will not be provided by the court if the respondent does not secure his or her own counsel.
The respondent will be expected to answer the charges against him or her by pleading to the factual allegations and charge of removability contained in the Notice to Appear. Thereafter, if the respondent is eligible to apply for any relief from removal (such as asylum or cancellation of removal, among others), the respondent may request such relief and file any applications required for the relief. If the respondent is not eligible for any form of relief or if the respondent refuses to request relief from removal, the immigration judge may order the respondent removed from the United States.
If a respondent has filed an application for relief or has expressed to the immigration judge that he or she will be seeking a specific form of relief for which the respondent is not precluded by law, the immigration judge will set a merits hearing date. The merits hearing may be a matter of days or perhaps even more than a year later, depending on the type of relief requested and the particular court's docket. However, if the only form of relief from removal available or requested is voluntary departure, the immigration judge will most often grant or deny the respondent's request for voluntary departure on the same date of the request.
At the merits hearing, also known as the "individual hearing," the respondent will be able to present his or her documentary evidence (which is typically required to be submitted to the court prior to the date of the merits hearing) for the court's consideration. The respondent may also testify in support of his or her application for relief, and may call witnesses. The Department of Homeland Security also questions the respondent and witnesses, and DHS may also call its own witnesses in some cases. At the conclusion of the merits hearing, the immigration judge issues a decision. This decision might be oral and given on the same day as the merits hearing, or written and served by mail on all parties at a later date.
If a respondent's application for relief from removal is denied by an immigration judge, the respondent may be eligible to appeal that decision to the Board of Immigration Appeals ("BIA") within 30 days of the date of the decision. If appealed, the respondent's removal proceedings continue at the appellate level at the BIA. If no appeal is filed and the immigration judge has ordered a respondent to be removed, the order removing the respondent becomes final 30 days after it has been entered by the immigration judge. A respondent with a final order of removal from an immigration judge is susceptible to being arrested and deported from the United States at any time.