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Thursday, July 20, 2017

Removal Proceedings in the US

Written by  Linda A. Dominguez

Removal proceedings (also called “hearings”) in the US are conducted by the Executive Office for Immigration Review (“EOIR”), Office of Immigration Court (“IC”). An immigration judge is an employee of EOIR and, generally, is a lawyer who has experience in immigration law prior to becoming a judge. Immigration Courts preside over cases within their geographical jurisdiction, i.e., the Baltimore IC handles all cases for persons who live within the State of Maryland; the Newark IC handles all cases for persons who live within the State of New Jersey, etc. If a person decides to move to a location outside of the geographical jurisdiction of the IC handling their case, the case is sent to the IC which does have jurisdiction. This is called a “change of venue” and can be done by a motion to the IC asking for the change from either the person in removal proceedings or by the Office of Chief Counsel.

 

Removal proceedings are started by the issuance of a Notice to Appear (“NTA”) by either Immigration and Customs Enforcement (“ICE”) or Citizenship and Immigration Services (“CIS”). The NTA is the document which states the basis for the illegal status of the person being charged, as well as the section of the Immigration and Nationality Act (“INA”) that the person has violated. These are not criminal violations; all removal proceedings are considered to be civil in nature and there are no sentences to serve time in jail or prison.

There are three results of removal proceedings:

1) the person is ordered to be removed from the US

2) the person is granted voluntary departure to leave at their own expense within a set time frame from the US, and

3) an application for relief from removal filed by the person is granted and the person is considered to be lawfully residing in the US.

The initial hearings in a removal proceeding are called a master calendar and it is held with many other cases on the same day. In the Baltimore IC, a judge will handle as many as 70 cases on a master calendar within four hours. Persons who have an attorney go first because those cases go faster and the judge does not have to explain the law to the person in proceedings. A person who does not have an attorney at their first master calendar hearing usually asks for a continuance to retain an attorney. While there is a right to have an attorney represent a person in removal proceedings, the person must pay for that attorney themselves and there is no right to an attorney paid for by the government. The statistics show that a person with an attorney usually has a better result than someone who tries to handle his or her own case by themselves. Because of the huge overload of cases before the ICs, the time between hearings can be very long.

If the person in removal proceedings is eligible to apply for relief from removal, they must file the application, with supporting documents, with the IC. A copy of the application package is given to the Office of Chief Counsel, which is the office that represents the Government’s interests before the IC. The judge will set an individual hearing, which can be as long as four years from the date of the master calendar when the application is filed with the IC. At the individual hearing, the judge will listen to testimony from the person in proceedings, any witnesses from either side, and any legal arguments from the attorneys. An interpreter is provided by EOIR, if needed. Generally, an individual hearing is given a slot of two to four hours. Unless there are a lot of documents to be reviewed, a decision is handed down that day. If the judge does not feel ready to give an oral decision that day, he or she will schedule a master calendar hearing to hand out a written decision. The judge’s decision will be either a grant of the application for relief or, if the judge finds the person is not eligible as a matter of law or as a matter of discretion, the decision is an order of removal or for voluntary departure from the US. In either situation, both the Government and the person in removal proceedings have the right to file an appeal within 30 days of the date of the decision.

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