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Removal or Deportation of Immigrants

With removals (or deportations) of immigrants and non-immigrants expected to reach approximately 400,000 by year-end 2010, it is now more important than ever that immigrants know what to expect if arrested by the Department of Homeland Security (“DHS”) and placed in removal proceedings. Of paramount importance is understanding that an arrest by DHS does not automatically lead to an order of removal. Many immigrants have more than one form of relief available to them; therefore, if properly prepared, an individual faced with deportation could successfully challenge removal. While this article is intended to provide a general overview of removal proceedings, it is not intended to serve as legal advice and we strongly encourage anyone undergoing removal proceedings to secure the assistance of an attorney as soon as possible.

Non-US citizens living in the US, including legal permanent residents, are vulnerable to being placed in removal proceedings for any one of dozens of grounds of inadmissibility or deportability. Among the most common reasons for being arrested by DHS are: being convicted of a crime, applying for immigration benefits that are not approved, working without authorization, and requesting admission to the US without valid documents. Removal proceedings commence with a charging document called a Notice to Appear.  Among other information, the Notice to Appear contains the formal charges, the time and place of the hearing, and the consequences for failing to appear.  The Notice to Appear need only give a 10-day notice of the initial hearing.  However, since proceedings begin when the Notice is filed in court and not when it is served, a recipient of a Notice to Appear may find that he or she has fewer than 10 days to prepare.

An immigrant may be kept in custody, released under a bond of at least $1,500, or released on conditional parole into the community. Bond hearings occur before the removal hearing and are usually scheduled within days of the arrest, providing little time to prepare and present reasons, in writing to the Immigration Judge prior to the hearing, why bond should be granted. These reasons can include health issues, having family members who are U.S. citizens, hardships to those family members, etc.  The bond hearing is separate from the removal proceedings and its purpose is exclusively to determine whether the individual should be held in custody or released while removal proceedings are on-going.

Removal hearings generally involve two hearings, the first of which is usually scheduled within a couple weeks of an arrest (or a few months in other cases).  A Master Calendar Hearing provides the immigrant the opportunity to answer the charges against him or her and to file his or her application for relief from removal. It is at this hearing that the Immigration Judge will then set a trial date for the second hearing to consider the merits of the application for relief.

The second hearing, also known as the Individual Hearing, is typically scheduled 9-18 months after the Master Calendar Hearing (except in cases of mandatory detention, when it is scheduled much quicker).  The Immigration Judge will consider the evidence which may include challenges to the charges in the Notice to Appear or a request for relief from removal and will make a finding on inadmissibility or removability and decide whether to grant any relief sought. Both the immigrant and/or DHS may appeal the Immigration Judge’s order to the Board of Immigration Appeals within 30 days of the decision.  

Removal proceedings can be stressful and intimidating. They are also unforgiving if one does not understand the procedures and deadlines. It is for these reasons that immigrants or family members of immigrants undergoing removal proceedings are strongly encouraged to seek legal counsel as soon as they are arrested by DHS or receive a Notice to Appear.