Regardless of legal status, the fear of deportation is very real to many immigrants. The thought of uprooting your entire life and moving to another country, only to be deported, is stressful. If you are given notice that you are facing removal from the United States, then you will likely go through Removal Proceedings before an Immigration Court.
What Are Removal Proceedings
Removal proceedings are the process by which the government makes its case for your deportation. Removal proceedings take place in Immigration Court before an immigration judge. The Department of Homeland Security (DHS) files a Notice to Appear (NTA) with an immigration court, which lists all the reasons why they believe you can be deported from the United States. Once the NTA is filed, the removal proceedings are formally initiated.
After the NTA is filed, an initial hearing, known as the “Master Calendar Hearing” will take place. At this time DHS will have to prove that you are not a citizen and that you have violated immigration law in some way. If the judge sustains the charges against you, you will have an opportunity to present a case as to why you should remain in the U.S. The case will be presented at a final hearing, known as an “Individual Hearing.” If the immigration judge grants your case, you can stay in the United States. If the immigration judge does not grant your case, you will still have an opportunity to appeal the decision to the Board of Immigration Appeals (BIA), which sits in Falls Church, VA. If your case is not successful at the BIA, then you may have a right to appeal to the Federal Court of Appeals, and finally the Supreme Court.
If a judge in an appeals court concludes that the original judgment in favor of deportation was wrong, the case would go back to the first level again. Because of this process, these cases can take anywhere years.
Approaches In Stopping Removal Proceedings
Experienced immigration lawyers use different strategies to stop these proceedings. These strategies are heavily dependent on why you left your previous country of residence, the way in which you immigrated to the U.S., your length of residency and ties to the United States, and if you’ve had involvement in any “particularly serious” crimes. If you immigrated to the U.S. in a lawful manner and have had no criminal charges against you, you may generally have better chances. If that doesn’t apply to you, it can be more complicated.
Some tactics for stopping removal proceedings are:
- Improper serving of the Notice to Appear or other issues with the Notice to Appear
- You are not removable as charged
- Voluntary departure
Improper Serving Of Notice To Appear
One of the first things your immigration lawyer should do is examine how the filing of the NTA was handled. When DHS serves a Notice to Appear, they have to follow specific steps. The NTA must be served on the respondent (you) and also filed with the immigration court. Proceedings cannot take place until both of these steps have been completed. If there is no documentation of you receiving the NTA, the process must stop until the NTA is properly served. Likewise, if you have been served but there is no record of the NTA with the courts, then the process does not go forward until DHS files with the courts. Immigration lawyers also review the contents of the NTA in order to ensure that it meets all requirements under the law, and to look for any mistakes or errors that would give rise to a strong legal challenge to stop or terminate removal proceedings.
You Are Not Removable As Charged
In any case brought before any judge in the U.S., the prosecution has what’s known as “the burden of proof.” In immigration proceedings, the DHS has the burden to prove that the respondent (you) is removable as charged. An immigration attorney may be able to come up with arguments that the DHS has not met its burden of proof in demonstrating your removability. Nonetheless, even if the judge feels that the DHS has provided enough proof, you may still be able to get either mandatory or discretionary relief from removal.
Voluntary departure is a last resort strategy; however, it will not keep you from being removed. Deportation creates a permanent and unfavorable transaction on your immigration record, which would make it difficult to ever come back. Opting to leave without force keeps your options open should a legal way back present itself. Choosing this will also provide more time to get your affairs in order. If not departing by choice, you get 30 days notice. Voluntary departure allows you 60-120 days before removal.
Talk To The Knowledgeable Removal Proceedings Attorneys
Immigration law is very complex, and removal proceedings even more so. If this is a situation you find yourself in, you will need an experienced immigration attorney. Removal proceedings can be a very fast or very slow process, depending on your case and how good your attorney is. Choose an attorney who is experienced in removal proceedings to ensure you are well represented. There are more strategies to stop removal proceedings than listed here, and a good attorney will be able to advise on them; but most importantly a good immigration attorney will assist you to make the best choice for your situation.
At Johnson & Masumi, we have decades of combined experience in representing individuals before the Immigration Courts. We have handled extremely complex cases with success and have even brought people back to the United States after they were deported. If you have questions about your case, please contact us at 703-506-1400.