Deportation Defense

What Are Removal Proceedings?

You may have heard the terms removal proceedings, deportation proceedings or exclusion proceedings at one time or another. Although under immigration laws they have different definitions, we can generally say that they all concentrate on whether you have a right to be or remain in the United States.

Who Ends Up In Immigration Court?

There are a variety of reasons why someone may be called to immigration court for a removal or deportation hearing. These are:

• Those whose application for asylum was denied and had overstayed their initial visa period, or had applied for asylum while they had no status (such as those who arrived without any visa, or those who asked for asylum at a border).
• Those who have overstayed their visas.
• Those who have committed crimes, even if it was years ago and even if they paid their debt to society, who have left the U.S., and are “discovered” on their way back.
• Those who were convicted of a crime and then have been picked up by the immigration authorities after they did their time in jail or prison.

There are situations when someone who has violated immigration laws of the United States will not have a removal or deportation hearing. Examples of these are those who have re-entered the country after having already been ordered removed, those who agree to a removal without a hearing and those who are removed without an administrative hearing since they are deemed aggravated felons.

What Is The Immigration Court Procedure?

You are notified that you must appear in court through different written documents, the most prevalent being a Notice to Appear. This form not only has a date for your appearance, but also includes certain facts, certain factual allegations, and certain reasons or charges of removability. 

The hearing is conducted in an immigration court and presided over by an immigration judge, who is a representative of the Attorney General of the United States and works for the Department of Justice. The government is represented in these proceedings by the Office of District Counsel, and the person who is in removal proceedings (known as the respondent) can be represented by a private attorney of his or her choosing, but unlike criminal proceedings, is not entitled to a free representation by an attorney afforded to him by the government. 

The Master Calendar Hearing

The initial hearing is called a Master Calendar Hearing, and the respondent is expected to respond to the Notice to Appear at this hearing. The respondent has many rights under the immigration laws at this hearing. For example, the right to have the charges against him or her read to him, the right to have received notice of the hearing and the right to be represented by counsel.

There are often lots of respondents present in court in a Master Calendar Hearing, and each will spend just a few minutes in front to the judge to either respond to the Notice to Appear, have a short hearing on a motion, or other procedural issues.

At the immigration court hearings, you are entitled to have an interpreter at no charge if your best language is not English. Please note that even if you do speak English, if your best language is another one, it is advisable to allow the court to provide this free interpreter, and often the court will have an interpreter even you state that you are conversant in the English language, if it was the judge’s belief that English is not your “best” language.

There is now an Immigration Court Practice Manual, in effect since 2008. According to the Executive Office for Immigration Review, “the Practice Manual is a comprehensive guide that sets forth uniform procedures, recommendations, and requirements for practice before the Immigration Courts.”

There may be more than one Master Calendar Hearing. If the case is litigated, there are additional documents to be provided, motions are filed or if the court has re-scheduled the hearing due to its own motion or many other procedural reasons. It is not unusual for a case to have 2 or 3 Master Calendar Hearings in the span of 2 or 3 years before the case is finally scheduled for a final, or Individual Calendar Hearing.

Individual Calendar Hearing Or Merits Hearing

After you have fully litigated your case through responding to the Notice to Appear, filing the requisite documents and filing the necessary motions, the case will be scheduled for a Merits Hearing, or Individual Calendar Hearing. Please note, the immigration judges sometimes schedule a case on an individual calendar day because of various procedural or convenience-related reasons, but clearly express that the hearing is not an actual Merits Hearing.

Although a case is supposed to be heard on an individual calendar date, due to over-crowding sometimes more than one case is schedule for the same time. Judges, by-and-large tend to hear the older cases first, but based on the prevailing policy, sometimes other cases, like those where the respondent has a criminal record, are given priority. Since each court session is for only 3 hours, it is quite possible that even those cases that had been scheduled for an Individual or Merits Hearing would have to be re-scheduled, and given how full the immigration judges’ calendars have been in the recent past, it is possible that this new date may be months, or even years away.

The Decision Of The Immigration Judge

When a respondent has had his final hearing, the immigration judge renders a decision in this case, known as the Decision of Immigration Judge. This decision must comply with the prevailing law and precedent decisions, but the immigration judge has been given a great deal of discretion under the immigration laws of the United States. This decision is often made orally on the day of the Individual Calendar Hearing, but sometimes is done later and sent to the respondent by mail.

The decision must lay out clearly and concisely the reasons for the denial in order for the respondent to be able to appeal the case if he or she wants to. Sometimes, even with an approval or grant, the immigration judge does a comprehensive decision if the government has indicated that they intend to appeal the judge’s decision. The judge then indicates whether the parties have reserved appeal, and give instructions as to when and where an appeal needs to be filed, which is often the Board of Immigration Appeals, or BIA.

There are many remedies or relief that “respondents” can seek in court depending if they are qualified, at least at technically. These include but are not limited to: seeking waivers for grounds of inadmissibility, cancellation of removal, suspension of deportation, adjustment of status based on a visa category and asylum. The list here is not all inclusive and is just a sample of many things an attorney who knows the law may be able to ask for.

Asylum Hearings In Court

An application for asylum becomes defensive when an applicant is placed in removal proceedings in immigration court, which may happen by one of three ways:

• An applicant is not granted asylum by the officer in the asylum hearing (though they may grant asylum, asylum officers lack the authority to deny an application outright) and the case is referred to an immigration judge, who may rule freely, as he is not bound to the USCIS’s decision.
• An applicant was either caught in the United States or at a U.S. port of entry without proper legal documents, or in violation of their immigration status.
• An applicant was caught trying to enter the United States without appropriate documentation, was placed in the expedited removal process, but was later found to have a credible fear of persecution by an asylum officer.

The Ins And Outs Of An Asylum Hearing In Court 

At the court hearing, the application initially submitted will be made a part of the record. The applicant can and is encouraged to testify at this hearing in support of his or her application. Due to the weight of the hearing, it is important that an applicant be prepared to testify honestly, clearly, and emotively, in order to best increase his or her chances of influencing the final outcome.

Experts, supporting witnesses, and friends and family who can attest to the applicant’s country conditions and establish likelihood of persecution may be called to testify. Moreover, if the situation in the applicant’s country of origin has changed substantially in the time between the interview and the hearing, such changes should be brought to the attention of the immigration judge.

The immigration judge will hear arguments from both the applicant and the U.S. government, represented by an attorney and, upon deliberation, will decide whether the individual is eligible for asylum If found eligible, the Immigration Judge will order asylum to be granted. If found ineligible for asylum, the immigration judge will determine whether the individual is eligible for any other forms of relief from removal; if not, the immigration judge will order the individual to be removed/deported from the United States

Appealing The Decision Of The Immigration Judge

Let us assume that you are unhappy with a decision of the immigration judge on a certain motion or request, or with the immigration judge’s decision in your case. What can you do then? You have a right to file either an interlocutory appeal while the case in chief is still pending, or file an appeal at the end of the case.

Once you have had your final Individual Hearing before an immigration judge, if you have been ordered removed or deported from the United States or if you are still in immigration court proceedings but had asked for bond, such as a “Rodriguez bond” and you were denied this, or are unsatisfied with the court’s bond decision, the next step is an appeal to the Board of Immigration Appeals, often referred to as the BIA. 

You must reserve the right to appeal after the judge issues his or her decision. This will give you 30 days to file your Notice of Appeal, and if you fail to do this within the 30 day period you have in essence given up your right and the judge’s decision remains as it is. You MUST reserve appeal if you want to continue fighting your case. 

If you decide not to appeal, you have waived your right to appeal and will not be able to appeal at a later time unless some very specific things happen. It is always advisable to reserve appeal even if you are not sure you want to use it, because there are no penalties for reserving and then deciding against it, but failing to reserve your right to appeal will mean you will have a huge hurdle to climb afterwards, should you realize a BIA appeal is necessary.

The following is a chronology of what usually will happen in a case appealed to the BIA:

• You complete and send the “Notice of Appeal” forms to the BIA. 
• The BIA will send you a receipt. 
• The BIA will send you a copy of the transcript, the Immigration Judge’s decision, and a briefing schedule. 
• You send your brief to the BIA. The BIA must receive the brief by the deadline.
• You may ask for one 21 day extension – but must do so by the brief deadline.
• The government will also write a brief, and they will send you a copy. 
• The BIA will review the briefs, and will make a decision in one to two months.

Is there a particular time when I should file my appeal to the BIA?

You can file an interlocutory appeal at any time. This means that if you are unhappy and disagree with some decision an immigration judge has made in your case you can appeal that decision. Be warned though that interlocutory appeals often do not win because the BIA disfavors multiple appeals in one case, since you can include all the issues in one appeal at the end if the outcome was not acceptable.

You can also appeal the immigration judge’s decision on bond proceeding. For example you are in the U.S. District Court for the Central District of California ordered a preliminary injunction in Rodriguez v. Robbins, a class action lawsuit on behalf of immigration detainees in the Los Angeles district who have been detained for six months or more while they fight their immigration cases. As a result of the order, certain class members will receive bond hearings before an immigration judge where the government has to prove that it should continue detaining these individuals. Unfortunately, not all immigration judges conduct these hearings with the same view of what is fair and you may disagree with the result. You have a right to appeal this independently of the actual case.

You can also appeal after the judge has made his or her final decision and issued an order in your removal or deportation. As stated above you have a right to appeal the immigration judge’s decision providing you have reserved it at the conclusion of the hearing before the judge, or it was reserved for you by the judge. 

Are immigration judges required to tell you when you can file an appeal?

Yes and no! When it comes to interlocutory appeals, they will not. It is your responsibility to safeguard your rights in this regard. If you have an attorney, he or she will know when a decision is appealable, but otherwise it would be very difficult for you to do this.

Otherwise, generally the law requires the immigration court to notify you when you should file an appeal and this is typically what will happen:

The judge may actually ask you if you wish to reserve or waive appeal.

The judge assumes you will appeal, and gives you a date when the appeal must reach the BIA. 

The judge hands you a BIA appeal package.

Can you change your mind after you waive your right to reserve appeal?

General you cannot change your mind once you have given up your right to appeal. The BIA usually assumes you knew what you were doing and – as the saying goes-everything has a time and a place. The BIA often views these types of late appeals dilatory appeals, which means you are just delaying the eventual deportation or removal. You would have to show giving up this right to appeal was not knowing or voluntarily This is very difficult. So we suggest you think hard before giving up your right to appeal to the Board.

What are the special forms for BIA?

Notice of Appeal from a Decision of an Immigration Judge: This is the actual appeal form and it is usually printed on blue paper. This is the form to file if you are appealing a removal order or a bond order.

Fee Waiver Request: Generally, if you are appealing a removal order, there is a fee of $110.00. The Board may waive this fee if it is clear that you cannot afford this expense. This form allows the Board to consider your finances and waive the fee and it is usually printed on white or tan paper. There is no fee if you are appealing a bond order. 

EOIR 33 – Change of Address/Contact Form: If you are released on bond from immigration detention or if you move while your appeal is pending, you must notify the Board of Immigration Appeals of this change within 5 working days. This form serves to notify the Board of the change in address and it is usually printed on pink paper.

Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals: This form is for your attorney, if you have one or if you hire one later. It is usually printed on yellow paper. 

After I have filed the forms, is there anything else I would need to do?

The appeal form actually asks you whether you intend to file a separate written brief or statement after filing this Notice of Appeal.

If you mark “yes,” then the Board expects you to file a written brief. The BIA will first send you a copy of the court documents and records and also schedule when your brief is due. In your brief you are expected to include what the facts are, what the law is, and how the immigration judge made mistakes of fact or law.