REMOVAL PROCEEDINGS

Procedure:

"Removal proceedings" are used to determine whether a non-U.S. citizen, or "alien," should be deported (i.e. expelled) from the U.S.

The removal process generally starts with the apprehension of a noncitizen. These apprehensions are usually effected by employees of ICE or CBP. Within 48 hours of arrest, the Department of Homeland Security must decide whether a noncitizen is in the United States in violation of the law. If there is evidence of a violation, a Notice to Appear (NTA) is issued and served on the alleged noncitizen.

The NTA serves to explain the nature of the proceeding, specifies the deportability grounds charged, recites all the factual allegations necessary to establish those charges, states the time and place of the person's required appearance before an immigration judge, and instructs the person to notify the government of any address changes.

After the NTA is served and filed with the immigration court, the noncitizen or his or her counsel appears at a master calendar hearing. At the master calendar hearing, the immigration judge may finally decide a case or use the hearing to identify issues and set a schedule for filing of any motions or applications for relief. The judge will schedule a removal hearing date.

A noncitizen has a right to be represented by counsel, but only at his or her own expense. There is no right to appointed counsel.

Relief from Removal:

There are various types of relief from removal that will allow a noncitizen to stay in the U.S. These include but are not limited to: (1) cancellation of removal and adjustment of status; (2) voluntary departure; (3) and withholding of removal.

(1) CANCELLATION OF REMOVAL:

There are two types of cancellation of removal: (a) for certain permanent residents of the United States; and (b) for certain nonpermanent residents.

Type A

If you are a permanent residence and under removal proceedings you may be eligible for cancellation of removal if:
  • (i) you have been a permanent resident for at least five (5) years;
  • (ii) prior to service of the Notice to Appear, or prior to committing a criminal or related offense referred to in sections 212(a)(2) and 237(a)(2) of the INA, or prior to committing a security or related offense referred to in section 237(a)(4) of the INA; -- you have at least seven (7)years continuous residence in the United States after having been lawfully admitted in any status; and
  • (iii) you have not been convicted of an aggravated felony.

Type B

If you are not a permanent resident, you may still qualify for cancellation of removal if:
  • (i) prior to the service of the Notice to Appear, you have maintained continuous physical presence in the United States for ten (10) years or more, and you have been a person of good moral character as defined in section 101(f) of the INA during such period;
  • (ii) you have not been convicted of an offense covered under sections 212(a)(2), 237(a)(2), or 237(a)(3) of the INA; and
  • (iii) your removal would result in exceptional and extremely unusual hardship to your United States citizen or lawful permanent resident spouse, parent, or child, and you are deserving of a favorable exercise of discretion on your application.

(2) VOLUNTARY DEPARTURE:

Voluntary departure allows a non-citizen to voluntarily leave the United States. In exchange, no formal removal order issues.

There are two types of voluntary departure: (a) noncitizens depart voluntarily, at their own expense, either in lieu of removal proceedings or before removal proceedings have been completed; and (b) noncitizens depart voluntarily at the conclusion of removal proceedings at their own expense.

Immigration and Customs Enforcement (ICE) may grant voluntary departure only under section (a) and only in lieu of removal proceedings. The Executive Office for Immigration Review (EOIR) has the authority to grant voluntary departure in other circumstances.

Why Should I ask for Voluntary Departure?

There are at least a couple reasons why voluntary departure is advantageous rather than a removal order. One is that noncitizens who are formally ordered “removed” cannot return to the United States for at least ten years or more. Voluntary departure can help avoid this bar to being admitted into the United States for such a long period. Another benefit of voluntary departure is that it allows a noncitizen to depart the United States on his or her own terms. He or she will have time to gather his or her affairs and choose the day of departure as long as it is within the time period given under the law.

(3) WITHHOLDING OF REMOVAL:

Withholding of removal, if granted, does not allow the Department of Homeland Security (DHS) to forcibly return a noncitizen to a country of persecution. A non-citizen must establish that it is more likely than not that his or her life or freedom would be threatened in that country because of his or her race, religion, nationality, membership in a particular social group, or political opinion. INA 241(b)(3).

Withholding of removal does not necessarily prevent return to another country. A non-citizen may still be removed to a country that will not threaten freedom or life. If granted withholding or removal, this does not give a right to bring relatives to the United States and does not give a right to become a lawful permanent resident of the United States.

Applying for withholding of removal uses the same application for asylum (Form I-589). This form may also be used to apply for withholding of removal under the Convention Against Torture.