Removal Proceedings: The Complete Guide to Deportation Cases
Removal proceedings are the formal legal process through which the U.S. government orders a noncitizen deported from the country. The process is governed by the Immigration and Nationality Act, regulations in the Code of Federal Regulations, and decades of precedent from the Board of Immigration Appeals and federal courts. For the person facing removal, the stakes could not be higher. Removal means separation from family, loss of employment, and return to a country you may not have seen in decades.
Every removal proceeding begins with a charging document and ends with a decision. Between those two points, the respondent has the opportunity to challenge the charges, present evidence, and apply for relief. Understanding the structure of removal proceedings is the first step toward mounting an effective defense.
What Are Removal Proceedings
Removal proceedings are the administrative adjudication of whether a noncitizen should be removed from the United States. The proceedings are conducted by immigration judges within the Executive Office for Immigration Review, which is part of the Department of Justice. Immigration courts are not Article III courts. They are administrative tribunals with specialized jurisdiction over immigration matters.
The government bears the burden of proving removability in most cases. The respondent bears the burden of proving eligibility for any relief from removal. The proceedings are civil, not criminal, which means the rules of evidence are relaxed and the standard of proof is lower.
Legal Framework
The removal process is governed by INA section 240. This section provides the statutory framework for removal proceedings including the right to counsel, the right to present evidence, and the right to appeal. The Attorney General has delegated adjudication authority to immigration judges through regulation.
The BIA provides appellate review of immigration judge decisions. Federal courts provide judicial review through petitions for review filed in the U.S. Courts of Appeals. The Supreme Court has the final word on questions of immigration law.
Grounds of Removability
The INA lists specific grounds on which a noncitizen can be removed. These grounds are divided into categories including deportability grounds for people who have already been admitted and inadmissibility grounds for people seeking admission.
Deportability Grounds
The most common deportability grounds include overstaying a visa or violating the terms of nonimmigrant status, committing certain criminal offenses including crimes involving moral turpitude and aggravated felonies, engaging in fraud or willful misrepresentation to obtain immigration benefits, being present in the United States in violation of law, and being a security risk or having engaged in terrorist activity.
Criminal grounds of removability are among the most complex areas of immigration law. The definition of aggravated felony under INA section 101 covers dozens of offenses. The immigration consequences of a criminal conviction depend on the specific statute of conviction, not the label assigned by the criminal court.
Inadmissibility Grounds at the Border
People seeking admission at a port of entry are subject to inadmissibility grounds rather than deportability grounds. The distinction matters for certain forms of relief. Inadmissibility grounds include health-related grounds, criminal grounds, security grounds, public charge grounds, lack of labor certification, fraud and misrepresentation, and prior immigration violations.
The Removal Process Step by Step
Removal proceedings follow a predictable sequence from the initial charging document through the final decision and potential appeal.
Notice to Appear
The Notice to Appear is the charging document that initiates removal proceedings. The NTA must contain the nature of the proceedings, the legal authority for the proceedings, the factual allegations, the charges of removability, and the time and place of the hearing.
The Supreme Court decisions in Pereira v. Sessions and Niz-Chavez v. Garland clarified that an NTA that does not specify the time and place of the hearing is defective for purposes of the stop-time rule. These decisions have significant implications for cancellation of removal eligibility.
Master Calendar Hearing
The master calendar hearing is the initial appearance. The respondent appears before the immigration judge, pleads to the charges, and indicates the forms of relief sought. The judge sets a schedule for filing applications and evidence.
Individual Merits Hearing
The individual merits hearing is the trial. Both sides present evidence and witnesses. The respondent testifies about the basis for relief. The immigration judge evaluates credibility, weighs evidence, and issues a decision.
Decision and Order
The immigration judge issues an oral or written decision. If the judge grants relief, the case terminates. If the judge orders removal, the respondent receives a removal order. The removal order specifies the country to which the respondent will be removed.
Forms of Relief Available
Respondents in removal proceedings may apply for various forms of relief. The most common include asylum and withholding of removal, cancellation of removal for lawful permanent residents and nonpermanent residents, adjustment of status to lawful permanent residence, voluntary departure, and relief under the Convention Against Torture.
Voluntary Departure
Voluntary departure allows the respondent to leave the United States at their own expense within a specified period. Voluntary departure avoids a formal removal order and the associated bars to reentry. The immigration judge may grant voluntary departure at the conclusion of proceedings.
Failure to depart by the voluntary departure deadline results in a civil penalty and converts the voluntary departure to a removal order. The respondent is then subject to the same consequences as a person removed through formal proceedings.
Adjustment of Status in Removal Proceedings
Respondents who have an immediate relative visa available may apply for adjustment of status during removal proceedings. The immigration judge has jurisdiction to adjudicate the I-485 application. The respondent must be admissible and must not be subject to any bars to adjustment.
Adjustment of status in removal proceedings is a powerful form of relief. It terminates the proceedings and grants lawful permanent residence. The key requirements include a qualifying family relationship, an approved I-130 petition with a current visa, and admissibility. Marriage to a U.S. citizen during removal proceedings is permissible but is closely scrutinized for fraud.
Relief Under the Convention Against Torture
CAT protection is available to respondents who face a likelihood of torture in their home country. Torture is defined as severe pain or suffering intentionally inflicted by or with the consent of a public official. Unlike asylum, CAT protection does not require nexus to a protected ground.
CAT protection is mandatory. If the respondent establishes that torture is more likely than not, the immigration judge must defer removal. CAT protection is broader than withholding of removal in some respects but more limited in others. CAT protection does not provide a path to permanent residence. The respondent remains in the United States but cannot be removed to the country where torture is likely.
Consequences of a Removal Order
A removal order carries significant consequences beyond the immediate requirement to leave the United States. The order bars reentry for a period of years or permanently depending on the circumstances. Removed individuals who reenter without authorization are subject to criminal prosecution.
Bars to Reentry
INA section 212 creates bars to reentry for removed individuals. The bar period depends on the length of unlawful presence, the basis for removal, and whether the removal was expedited or full. Certain aggravated felony removals result in permanent bars.
Waivers of inadmissibility may be available for some bars but not others. The INA waiver provisions are narrow and specific to each ground of inadmissibility.
Criminal Consequences
Reentering the United States after a removal order without authorization is a federal crime under INA section 276. The offense is punishable by up to two years in prison, with enhanced penalties for certain prior convictions.
Frequently Asked Questions
Can I get a lawyer for removal proceedings? Yes. You have the right to be represented by an attorney at no expense to the government. You must find and pay for your own attorney.
How long do removal proceedings take? The average case takes one to two years from the initial hearing to the final decision. Appeals add additional time.
What happens if I do not go to my hearing? The immigration judge may issue an in absentia removal order. You can request to reopen the case within 180 days if you had exceptional circumstances.
Can I work while removal proceedings are pending? In most cases, yes. You may apply for employment authorization while your case is pending.
What is an in absentia removal order? If you miss your scheduled hearing without good cause, the immigration judge may issue a removal order in your absence. You may request reopening within 180 days if you had exceptional circumstances.
Can I travel while in removal proceedings? Travel outside the United States generally requires permission from DHS. If you leave without permission, you may be deemed to have abandoned your application for relief and may be unable to return.
What is the difference between removal and deportation? The terms are used interchangeably under current law. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 replaced deportation proceedings with removal proceedings and consolidated both into a single process.
Immigration Court Process — Deportation Defense — Immigration Appeals Process