Overview of Immigration Court Process
The U.S. Immigration Courts have jurisdiction to conduct removal proceedings – the process by which the U.S. government attempts to remove an allegedly deportable foreign national. Immigration Courts also preside over bond hearings, asylum-only proceedings, and rescission hearings.
Removal proceedings are initiated by the filing of a Notice to Appear (“NTA”) with the Immigration Court. The Department of Homeland Security (“DHS”) files the NTA with the Immigration Court that has jurisdiction over where the NTA is issued. Venue of the proceedings will lie where the NTA is filed.
Once the NTA is filed with the appropriate Immigration Court, the individual – the respondent – will be scheduled for a first appearance before an Immigration Judge, which is called a Master Hearing. At the Master Hearing:
- The respondent is notified of the charges of removal against him/her;
- The respondent will be asked to concede proper service of the NTA;
- The respondent will be asked to enter pleadings to the charges against him/her;
- The respondent will be asked to designate a country of removal in the event that it becomes necessary; and
- The respondent can designate any form(s) of relief from removal that s/he will be seeking.
If the respondent appears for his/her first Master Hearing without an attorney, s/he shall be given time to retain the services of an attorney if desired. Respondents in removal proceedings have the right to represented by counsel of their choosing, however, they are not entitled to an attorney at the expense of the government.
Once the respondent designates the relief from removal that s/he will be seeking, the Immigration Judge will schedule an Individual Hearing (trial). At the Individual Hearing, the respondent is provided with the opportunity to present evidence in support of his/her application for admission and to call witnesses on his/her behalf. The respondent also has the right to cross-examine any witnesses against him/her.
At the end of the Individual Hearing, the Immigration Judge will render a decision. The respondent and the government will have the right to reserve appeal if they do not agree with the judge’s decision.
Board of Immigration Appeals
A decision of an Immigration Judge can be appealed to the Board of Immigration Appeals (“BIA”). The BIA can review decisions on the merits and also bond decisions.
A party that seeks to appeal an Immigration Court decision must file a Notice of Appeal with the BIA within 30 days of the Immigration Judge’s decision. The BIA will then order the transcript of the Immigration Court proceedings, which is then provided to the government and the respondent. The BIA then sets due dates for the respondent’s and the government’s briefs on appeal. Once both parties have filed appeal briefs, the BIA will consider the case and render a decision, which can take several months and even over one (1) year in some cases.
Foreign nationals charged with removal are subject to detention by the Department of Homeland Security (“DHS”) are eligible for release on bond except those subject to mandatory detention of those who can be classified as “arriving aliens” under the INA. Bond is initially set by the DHS.
The DHS should normally set bond unless it is determined that the individual is a threat to national security, likely to abscond, or a poor bail risk.
After the DHS sets the initial bond, the detained individual may make an application for bond redetermination to an Immigration Judge. A bond hearing may be requested orally or in writing. At the bond hearing, the Immigration Judge may set, lower, or raise bond.
Under the INA, certain classes of foreign nationals subject to removal must be detained and are not eligible for bond. These individuals subject to mandatory detention include:
- Anyone inadmissible on criminal grounds;
- Anyone deportable based upon commission of two (2) or more CIMTs;
- Anyone deportable based upon a conviction of an aggravated felony;
- Anyone convicted of a drug offense, a firearm offense, espionage, sabotage, or treason;
- Anyone convicted of a CIMT for which the sentence of imprisonment is at least one (1) year; and
- Persons involved in terrorist activity.
Arriving alien are also subject to mandatory detention. An “arriving alien” is an applicant for admission coming or attempting to come to the U.S. at a port of entry. While an arriving alien is not eligible for bond, these individuals are eligible for release from custody on parole. A request for parole is made to the DHS. The factors to be considered when determining whether to grant a parole request include:
- Seriousness of the offense;
- Prior criminal history;
- Any sentence imposed and any time served;
- History of failures to appear;
- Probationary history;
- Evidence of rehabilitation effort or recidivism;
- Equities in the U.S.;
- Availability of relief and likelihood it would be granted; and
- Prior immigration violations and history.