Removal Procedure

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The Department of Homeland Security (DHS) may initiate removal proceedings for any foreign-born individual subject to one or more grounds of inadmissibility or deportability under the Immigration and Nationality Act. Those charged with removability are, with few exceptions, entitled to a removal hearing before an Immigration Judge unless they have waived that right.

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Further, a person charged with removability may be detained until the end of removal proceedings. Some individuals detained while in proceedings are eligible to request a bond from the immigration judge. Others, however, may be subject to mandatory detention depending upon the recency and type of their criminal conviction. See the sections below regarding bond and bond redetermination proceedings for more information on bond eligibility.

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Removal proceedings are considered civil, and not criminal, in nature. The foreign national has the right to obtain a lawyer at his/her own expense and the right to present testimony, witnesses, and evidence to contest removal. Unlike criminal proceedings, a foreign national in removal proceedings has no right to a court appointed attorney.

A foreign national in removal proceedings is entitled to some measure of due process, which requires that the immigration judge explain the hearing procedures and inform the foreign national of his/her rights.

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To begin removal proceedings, the government files a Notice to Appear (NTA) with the Immigration Court. The NTA contains factual allegations that are the basis for the charge of removability. The NTA will contain factual allegations regarding the foreign national’s (known as the “Respondent” in removal proceedings) country of citizenship, date and manner of admission to the US, immigration status, and criminal history if relevant. The NTA further contains the section of the Immigration and Nationality Act which DHS alleges the Respondent has violated and is, therefore, removable.

After receiving the NTA from DHS, the Immigration Court will then schedule an initial hearing called the “Master Hearing.” At the Master Hearing, the immigration judge will ask the Respondent to admit or deny the factual allegations contained in the NTA. The Respondent will also be asked to concede or contest the charge of removability, i.e. the section of law from the Immigration and Nationality Act, that DHS has lodged in the NTA.

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Then the immigration judge will ask the Respondent if he/she has any relief from removal available. Eligibility for relief depends on several factors including when the person entered the US, their criminal record, family ties in the US, previous applications filed with the government, and conditions in their home country.

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If the Respondent is eligible for relief, the immigration judge will reset the case to a later date to hold an “Individual Merits Hearing” at which the Respondent will argue his/her case for relief. If the Respondent is not eligible for any relief from removal, the immigration judge will either grant voluntary departure (up to 120 days) or order the Respondent removed, i.e. deported.

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If the immigration judge orders removal, the Respondent has the right to appeal the decision to the Board of Immigration Appeals (BIA), and thereafter, with some limitations, to a US Circuit Court of Appeal. Once removed under an order, the foreign national will be inadmissible for a number of years mandated by law. He/she must wait to apply to return to the US unless granted a waiver or special permission to reenter the US before the period of inadmissibility ends.