Removal and Deportation Defense
Removal Proceedings Defense
Removal proceedings are initiated by the filing of a Notice to Appear (NTA) at the EOIR. An NTA will list allegations that ICE must prove are correct in order for an immigration judge to order your removal. An NTA will have a hearing date when the foreign national must appear before an immigration judge, or else he or she will be ordered removed in his or her absence. The first hearing is known as a master calendar hearing. In this brief hearing, the foreign national will answer the allegations of the case and present defense(s) to the court.
Master Calendar Hearing and Individual Hearing
At the master calendar hearing the judge will ask the foreign national to reply to the allegations charged against him or her in the NTA. This stage of the proceeding is similar to entering a plea to criminal charges, although this is not a criminal proceedings and instead, is considered a civil administered proceedings. If the foreign national is not represented by an attorney, he or she may typically be granted a short continuance in order to find counsel, at his or her own expense or through a nearby legal aid service provider. If the foreign national has an attorney, the immigration judge will first ask if the individual standing beside the foreign national is accepted as his or her attorney. After the foreign national responds affirmatively that he or she wants the attorney to represent him or her, the attorney will then answer most of the questions. The attorney should review with the foreign national information about the foreign national prior to the Master Calandar hearing in order to determine what allegations are true or should be admitted, what allegations are untrue or should be denied, and what types of relief from deportation could be available, if the allegations are true and would lead to an order of removal. The immigration judge may set several Master Calendar hearings in order to allow sufficient time for discourse with the client, or to have certain applications for relief submitted, or to address issues or law or fact.
Note: If the foreign national fails to appear at any scheduled hearing, the immigration judge will most likely enter an Order of Removal on the record, even in the absence of the foreign national. If the foreign national fails to appear, seek immediate legal assistance, as the options to reopen the removal proceedings or prevent removal are very limited.
At the Individual Hearing, the immigration judge expects and anticipates that all defensive relief is presented, testimony is allowed and expected, evidence is submitted – typically ahead of the prescribed time and date of the hearing, and depending on the burden of proof, the proper party must prove their case. If there are issues of law, the immigration judge may request a legal brief to be submitted on a certain subject, however, many of these issues are typically handled either at the master calendar hearing, or by separate hearing, to determine eligibility of certain forms of relief or other matters.
Procedure if Applicant is Found Removable
Even if the allegations in an NTA are true, or admitted as true, one or more exceptions could apply that would allow the foreign national to obtain relief, or at least buy some time before being deported. These options include, but are not limited to:
Note: Non-permanent residents may be eligible if they have been continuously present for at least 10 years in the U.S., have good moral character during that time, have not been convicted of an offense that would make them removable, and can demonstrate that removal would result in exceptional and extremely unusual hardship to direct family members who are U.S. citizens or lawful permanent residents.
Decisions made by an immigration judge may be appealed within 30 days of the decision by the immigration judge to the Board of Immigration Appeals (BIA). Appeals may be based on an attack of the final decision by an immigration judge for deportation or removal cases, cancellation of removal, adjustment of status, waiver adjudications, determinations related to bond or detention, determinations concerning mandatory detention, or to continue detention beyond removal period, or for rescission of Adjustment of Status, determinations related to asylum or TPS, and decisions relating to LIFE ACT.
If an appeal at the BIA stage fails, federal courts may review some decision from the BIA. These cases are generally filed with the Federal Court of Appeal with proper jurisdiction.