Removal (Deportation) Proceedings and the U.S. Immigration Court
Removal (formerly known as “deportation” or “exclusion”) is an administrative legal process which takes place before a U.S. Immigration Judge in which a determination will be made as to whether an alien will be permitted to remain in the U.S.
A removal proceeding is initiated by the service of a “Notice to Appear” (Form I-862) upon the alien individual (“Respondent”) whom the the Department of Homeland Security (DHS) suspects is present in the U.S. without proper authorization and/or is removable on account of their conduct, condition, or status. The Notice to Appear will contain information about the date and location of the removal hearing, as well as certain other information regarding procedural rights which the Respondent will have in connection with the proceeding, including the right to be represented by counsel. If the Respondent is not present at the hearing, the Immigration Judge may enter an order of removal against the Respondent “in absentia”. As removal orders entered in absentia are only generally reversed where there is a showing that circumstances beyond the Respondent’s control (ie. health related or a death in the family) prevented the Respondent from appearing at the hearing, the Respondent would be well advised to take extreme precautions to be present at the right time and location of the Removal Hearing as specified in the Notice to Appear.
At the hearing, the Immigration Judge will formally notify the Respondent of the removability charges and the Respondent will be given an opportunity to enter a plea (ie. whether they “admit” or “deny” the particular charges). The Respondent will then be permitted to request certain forms of relief from removal, including but not limited to asylum, cancellation of removal (for lawful permanent residents and non-permanent residents), withholding of removal, TPS, and voluntary departure. If applications or requests for relief from removal are made, the Respondent will then be permitted to present evidence and witnesses in support of relief from removal, which will generally include the Respondent’s own testimony.
As the rules of evidence and procedure are somewhat more relaxed in the Immigration Court (compared to a state or federal court of law), the Immigration Judge will generally accept and consider any type of relevant evidence which would tend to support the Respondent’s application for relief from removal, including but not limited to affidavits (sworn statements), newspaper articles, letters, photographs, and reports on country conditions (of the Respondent’s native country). Often, the Immigration Judge will grant the Respondent additional time (a continuance) within which to assemble all of his/her witnesses and evidence, thus allowing for a more orderly and just presentation of the case. As such, the Respondent would be well advised to make good use of any extra time granted by the Immigration Judge by immediately contacting favorable witnesses and obtaining any and all relevant evidence in preparation for the hearing.
If the Immigration Judge finds that the Respondent is removable and is not otherwise eligible for any of the requested relief from Removal, the Respondent will be ordered removed from the United States. Appeals from the Immigration Judge’s decision may be taken to the Board of Immigration Appeals (BIA) which will review the Judge’s decision and make a determination as to whether it will be upheld or reversed. Unless otherwise specified, appeals to the BIA must be filed (with the BIA in Falls Church, VA) within 30 days of the date of entry of the order of removal. If the BIA sustains the appeal (agrees that the Judge made an error in the decision), the BIA may take action to correct the error, or, in most cases, remand (send back) the case to the Immigration Judge for additional proceedings that will be in line with the BIA’s decision. But if the BIA upholds the decision of the Immigration Judge (ie. agrees with the judge’s decision that the Respondent is removable as charged), that decision can be appealed to the United States federal court for review.
An individual who is removed from the U.S. will be inadmissible for 10 years from the date of Removal, unless the DHS grants advance permission to return to the United States. This harsh consequence of Removal can be avoided by obtaining a grant of “Voluntary Departure” from the Immigration Judge, which will permit the Respondent to leave on his/her own accord on or before a specific date, not to exceed 120 days (four months).
Due to the extremely complex nature of the removal process and the harsh consequences which can result to an alien Respondent who is not properly prepared, an alien in removal proceedings would be well advised to seek the advice and representation of an experienced immigration attorney.
If you have any questions or need represenation in Removal Proceedings, contact South Florida Immigration Lawyer Sean D. Hummel at (954) 385-3111.
