Noncitizens who face charges of inadmissibility or charges of deportation can be placed in removal proceedings, during which time they may challenge the charge(s) and/or seek relief from removal.
Removal proceedings are conducted by immigration judges, who are part of the Executive Office of Immigration Review (EOIR) within the U.S. Department of Justice.
Removal proceedings commence when Department of Homeland Security (DHS) files a Notice to Appear (NTA, Form I-862) with the immigration court after it has been served on the respondent.
A removal proceeding does not officially commence until the NTA is filed with the immigration court having jurisdiction over the individual. A foreign national in removal proceedings is referred to as a “respondent” because he or she must respond to the charge(s) of removability listed in the NTA.
After the NTA has been served, ICE Office of Chief Counsel (OCC) files the NTA with the immigration court, at which time the court will schedule a master calendar hearing.
Bond proceedings are separate from removal proceedings. If a person is detained without bond, even if removal proceedings have not commenced, a request for a bond redetermination hearing may be filed, in writing, with the immigration court having jurisdiction over the respondent’s place of detention. Immigration judges also have jurisdiction to conduct a bond redetermination hearing within seven days of release from custody.
Two Types of Removal Proceedings
Two types of hearings are involved in a removal proceeding. The “master calendar” is the first type of hearing and encompasses initial and subsequent hearings concerned with scheduling, deadlines, and nonsubstantive matters.
At a master calendar hearing, the IJ ensures that the respondent understands the nature of the proceedings and the charges against him or her. The IJ must also ensure that the respondent is aware of the availability of pro bono or low cost legal representation.
The respondent pleads to the allegations and informs the court of the forms of relief to be sought.
The second type of hearing, the “individual hearing,” entails an examination of the case merits, including substantive legal issues and applications for relief. This may involve legal arguments by either party on substantive motions (e.g., motion to terminate proceedings) or material legal issues (e.g., eligibility for relief sought), as well as testimony by the respondent and other witnesses. In most instances, the IJ issues the final decision during an individual hearing.
When the immigration court receives the NTA from ICE OCC, a staff member will enter the case information into the EOIR database, which automatically schedules the matter for a master calendar hearing.
The master calendar hearing is generally the first appearance before an immigration judge, during which pleadings and other preliminary matters are entertained.
Every NTA begins with the same initial allegation; that the respondent is not a native and citizen of the United States. This allegation is generally admitted, unless the respondent is a native and citizen of the United States or information regarding foreign nationality was acquired through some improper means.
Make sure to consult with an immigration attorney who can carefully determine whether you may have a right to acquired or derivative citizenship. The second allegation usually addresses the respondent’s citizenship. The remaining allegations will vary depending on the particular facts of the case, but usually include time, place, and manner of entry. Additional allegations may list violations of criminal or immigration laws.
Unless waived, there will be a Formal reading of the NTA.
The immigration judge will explain your rights and obligations. The IJ will explain the nature and purpose of the immigration proceedings, and that you understand your rights and obligations.
You will enter pleadings to the NTA. Every NTA begins with the same initial allegation; that the respondent is not a native and citizen of the United States. This allegation is generally admitted, unless the respondent is a native and citizen of the United States or information regarding foreign nationality was acquired through some improper means.
The second allegation usually addresses the respondent’s citizenship. The remaining allegations will vary depending on the particular facts of the case, but usually include time, place, and manner of entry. Additional allegations may list violations of criminal or immigration laws. These allegations, if admitted, will support the government’s charge(s) in the NTA, providing the court with jurisdiction over the case.
As a matter of course, it is prudent to deny allegations and charges relating to criminal allegations. Because there are often arguments to be made against a finding of deportation or inadmissibility, so legal arguments can be presented to the immigration court challenging the charge(s) in the NTA and ask that the immigration judge make a specific ruling. If charges are denied, the immigration judge will normally provide the government an opportunity to submit documents establishing the allegation, or will set the matter for a contested hearing.
ICE assistant chief counsel will generally request designation of the respondent’s country of nationality/citizenship, and the immigration judge will then make the final designation.
If the immigration judge sustains the charge of removal, you must be prepared to state what application(s) for relief from removal, if any, you intend to file. If these applications are not ready at the time of pleadings, the judge will indicate a deadline by which they must be filed.
Asylum applications are required to be filed at a master calendar hearing in open court. Each court has preferences regarding other filings. Some judges will require in-court filings of all applications and will permit supplements to be filed at the clerk’s window. Other courts permit filing of applications through the clerk. If in doubt, ask the immigration judge during the hearing about his or her preferences.
The immigration judge will advise you prior to the close of the master calendar hearing of your obligation to update your address with the immigration court within five days of any change. The judge will also advise you regarding the requirement to be fingerprinted in conjunction with any forthcoming applications. Finally, the judge will advise you that, if you do not appear, an in absentia order of removal may be entered and you will be barred from certain forms of relief, including cancellation of removal, adjustment of status, voluntary departure, and registry, for a period of 10 years.
At the conclusion of the hearing, the court will provide you with written notice of the date and time of the next hearing.