How the Removal or Deportation Process Begins

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Once referred to as “deportation”, removal is the process of the U.S. government determining that an alien -- that is, a non-U.S. citizen, whether in the U.S. illegally or with a green card -- must be removed from the United States.

The removal or deportation process is complicated, and the stakes are high. Legal representation is essential to develop a defense strategy, preserve the rights of the alien, and present the best case possible in immigration court.

How Removal Hearings Are Begun

The Department of Homeland Security (DHS) is responsible for commencing a removal proceeding, often through its Immigration and Customs Enforcement Division, chillingly known as ICE.

There are numerous ways in which a non-citizen may come to the attention of the immigration authorities. These include anything from a phoned-in tip that the person is in the U.S. illegally (though followup on these is less common than one might think) to a workplace raid to a check on the immigration status of people in jail to a failed application for asylum, a green card, or even naturalization (U.S. citizenship). (Being denied citizenship is not grounds for removal by itself, but during the process, a criminal conviction or other grounds for removal may come to light.)

DHS must serve the alien with a Notice to Appear (NTA) before an immigration judge. It must inform the alien of:

  • the nature of the proceedings
  • the alleged grounds for removal
  • the person’s right to hire an attorney (at personal expense), and
  • the consequences of failing to appear at scheduled hearings.

Removal hearings are held before immigration judges (IJs) across the United States, under the auspices of the Executive Office for Immigration Review (EOIR). The IJ will determine whether the alien's actions or lack of immigration status make him or her removable from the United States, or whether the alien merits any legal or discretionary relief.

The First Hearing: Master Calendar

The first hearing that the alien must attend is known as a master calendar hearing. You do not need an attorney at this hearing, though it would be best to bring one. For an idea of what the immigration judge will say and do during this hearing, you can check the judges' "Master Calendar Hearing Checklist," available on the EOIR website.

It is extremely important to attend this first hearing, even if you don't have an attorney and don't know whether you have any defense to removal. If you fail to attend this or any hearing, an automatic order of removal will be issued against you. The consequences of such an order are severe -- most notably, you will be unable to return to the U.S., with any sort of visa, for ten years.

By contrast, if you appear in court despite having no defense to removal, you may be able to negotiate for what's known as "Voluntary Removal," or VR, the future consequences of which are much less severe. VR basically means that you admit to having no legal right to remain in the U.S. and agree to depart on your own, thereby saving the U.S. government any further trouble, and keeping your record free of a removal order. For more information on this, see "When Voluntary Deportation Is a Good Idea."

Of course, you don't want to accept VR if you do have some legal basis upon which to remain in the United States. Even after having been placed into removal proceedings, you may be able to qualify for a green card (or argue to keep your green card) based on such grounds as

  • marriage or another close family relationship to a U.S. citizen
  • asylum
  • cancellation of removal (available to people who have lived in the U.S. for ten years, shown good moral character, and can demonstrate that their removal would cause exceptional and extremely unusual hardship to their spouse, parent, or child who is a U.S. citizen or lawful permanent resident), or
  • showing that DHS was wrong about you being removable -- for example, that the nature of a crime you were convicted of wasn't as serious as alleged, and that you should be allowed to keep your green card.

The above are just a sampling of the possible defenses to removal. You'll want to talk to an immigration attorney for a full review of your case. At the master calendar hearing, you'll be able to tell the judge what sort of defense you expect to mount, and schedule a date for your merits hearing.

The Merits Hearing(s)

If you and your lawyer have a strategy to defend you against removal, you will present your case at the merits hearing. You will be allowed to testify on your own behalf, with your lawyer asking the questions. You will also have to be examined by an attorney for DHS. In addition, you can present witnesses and exhibits, such as photographs and sworn statements by people who know about your case, or are experts in a relevant topic area.

For example, if you were defending yourself against removal by claiming asylum, you would probably want to testify about your fear of persecution in your home country, present documents about the conditions in your country, include proof that you are a member of a persecuted group and were injured or discriminated against, and perhaps get an expert about that country to testify on your behalf.

Get Legal Help

Aliens are not entitled to free legal representation as U.S. citizens are.  If you cannot afford an attorney to represent you, contact local nonprofit organizations, which may be able to help you at a reduced cost.  

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