Immigration Court Process: What to Expect in Removal Proceedings
Immigration court is different from criminal court. There is no jury, no public defender, and the rules of evidence are looser. But the stakes are every bit as high. An immigration judge’s decision determines whether you stay in the United States or are removed to a country you may barely remember. Understanding how the process works can reduce the fear of the unknown and help you prepare effectively.
The immigration court system is part of the Department of Justice, not the Department of Homeland Security. The Executive Office for Immigration Review operates approximately seventy immigration courts across the United States. Over two million cases are currently pending, and the average case takes over a year to complete.
How Cases Begin in Immigration Court
Removal proceedings begin when DHS files a Notice to Appear with the immigration court. The NTA is the charging document that starts the case. It must specify the factual allegations and the legal grounds for removal. The NTA also states the date and time of the initial hearing.
Issuance and Service of the NTA
DHS may issue an NTA in various circumstances. People arrested at the border receive an NTA. People arrested in interior enforcement actions receive an NTA. People who apply for immigration benefits and are found ineligible may receive an NTA. The NTA must be served on the respondent in person or by mail.
The Supreme Court decision in Pereira v. Sessions and Niz-Chavez v. Garland established that an NTA that does not specify the time and place of the hearing is not a valid NTA for purposes of the stop-time rule. These decisions allowed many nonpermanent residents to establish continuous presence for cancellation of removal.
Service and Filing with the Immigration Court
DHS must file the NTA with the immigration court after serving it on the respondent. The court dockets the case and assigns it to an immigration judge. The respondent receives a hearing notice with the date and time of the master calendar hearing.
The Master Calendar Hearing
The master calendar hearing is the initial appearance in immigration court. It is a status conference, not a trial. The respondent appears before the immigration judge, usually represented by counsel or appearing pro se.
Pleading to the Charges
The immigration judge reads the charges in the NTA and asks the respondent to plead. The respondent may admit or deny each factual allegation and each charge of removability. Admitting the allegations is not the same as accepting removal. You can admit the factual allegations and still contest removability or apply for relief.
Admitting the allegations may simplify the case because DHS does not need to present evidence to prove them. Denying the allegations forces DHS to present evidence at the individual hearing. The decision about how to plead should be made with the advice of counsel.
Designation of Country
The respondent must designate a country to which removal will be ordered if relief is not granted. The default is the country of nationality. If that country will not accept the respondent, the immigration judge designates an alternative country.
Application for Relief
The respondent indicates the forms of relief they intend to seek. Common forms of relief include asylum, withholding of removal, cancellation of removal, adjustment of status, and voluntary departure. The judge sets deadlines for filing applications and supporting evidence.
Scheduling
At the conclusion of the master calendar hearing, the judge schedules the individual merits hearing and any interim deadlines. Multiple master calendar hearings may be necessary if the respondent needs time to find counsel or gather documents.
The Individual Merits Hearing
The individual merits hearing is the trial. Both sides present evidence and examine witnesses. The hearing may last a few hours or several days depending on the complexity of the case.
Evidence in Immigration Court
The Federal Rules of Evidence do not apply in immigration court. Immigration judges may consider any evidence that is probative and fundamentally fair. Hearsay is generally admissible. Documentary evidence may include country condition reports, medical records, witness affidavits, and expert reports.
The REAL ID Act of 2005 gave immigration judges specific authority to weigh evidence. The judge may consider the inherent plausibility of the testimony, the consistency of the testimony with the application and other evidence, and the demeanor of the witness.
The Respondent’s Testimony
The respondent typically testifies about the facts supporting their claim for relief. For asylum cases, the testimony covers the persecution suffered or feared. For cancellation of removal, the testimony covers hardship to qualifying relatives.
The DHS trial attorney may cross-examine the respondent. Leading questions are permitted on cross-examination. The immigration judge may also question the respondent directly. Consistent, detailed testimony that matches the written application is essential for credibility.
Closing Arguments and Decision
After both sides present evidence, the parties make closing arguments. The immigration judge may issue an oral decision from the bench or a written decision at a later date. The decision must include findings of fact and conclusions of law.
If the judge grants relief, the case ends. If the judge orders removal, the respondent may appeal to the Board of Immigration Appeals.
Representation in Immigration Court
Respondents have the right to counsel in immigration proceedings at no expense to the government. This means you must find and pay for your own attorney. You may represent yourself, but the data is clear: represented respondents have significantly better outcomes.
Finding an Immigration Attorney
Accredited representatives and immigration attorneys can represent respondents in immigration court. The EOIR maintains a list of pro bono legal service providers. The American Immigration Lawyers Association provides referrals. The quality of representation matters enormously.
Continuances and Administrative Closure
Immigration judges have discretion to grant continuances for good cause. Common reasons include pending applications with USCIS, the need to secure counsel, and medical emergencies. Administrative closure removes a case from the active docket without terminating proceedings.
Preparing Evidence and Building Your Case
The evidence you submit in immigration court can determine the outcome of your case. All evidence must be submitted by the deadline set by the immigration judge. Late evidence may be excluded unless the respondent shows good cause for the delay. The judge may also exclude evidence that is irrelevant, cumulative, or unreliable.
Documentary evidence should be organized with a table of contents and exhibit tabs. Translations must be certified by a qualified translator with a signed certification. The DHS trial attorney must receive copies of all evidence at the same time it is submitted to the court. Failure to serve evidence on the opposing party can result in exclusion.
Witness testimony can be critical. Witnesses must be identified to the court and the opposing party before the hearing. The witness must be available for direct examination and cross-examination at the individual merits hearing. Written witness affidavits may supplement live testimony but do not replace it.
Change of Venue and Telephonic Appearances
Respondents who move to a different location during their case may request a change of venue to the immigration court serving their new address. The request must show good cause and must be made in writing. The immigration judge has discretion to grant or deny the request.
Telephonic appearances are increasingly common in immigration court. Respondents may appear by telephone for master calendar hearings in some courts. Individual merits hearings are typically conducted in person. The judge may authorize telephonic appearance for good cause shown.
Frequently Asked Questions
How long does an immigration court case take? The average case takes one to two years from initial hearing to final decision. The timeline depends on court docket congestion, the complexity of the case, and whether an appeal is filed.
Can I change lawyers during my case? Yes. You may substitute counsel at any time. The new attorney files a Notice of Entry of Appearance with the immigration court.
What happens if I miss my hearing? If you miss a scheduled hearing and do not have a good excuse, the immigration judge may issue an in absentia removal order. You can request reopening within 180 days if you had exceptional circumstances.
Can the immigration judge give me a green card? Immigration judges can grant adjustment of status if you are otherwise eligible and have a visa immediately available. The judge has jurisdiction to adjudicate the I-485 during removal proceedings.
What should I bring to my master calendar hearing? Bring your Notice to Appear, any documents the court has sent you, identification, your attorney’s contact information, and any documents supporting your case. Arrive early and dress appropriately.
Can I request a different immigration judge? Not directly. You can file a motion for recusal if the judge shows bias or has a personal interest in the case. Mere disagreement with the judge’s decisions is not grounds for recusal.
What is the difference between a continuance and administrative closure? A continuance postpones the case to a specific future date. Administrative closure removes the case from the active docket without a specific end date. The case can be recalendared when circumstances change.
Removal Proceedings — Deportation Defense — Immigration Appeals Process