Removal Proceedings

What are removal proceedings?

Removal proceedings are civil administrative proceedings to determine whether or not a person may remain in the US. Lawful Permanent Residents may be placed into removal proceedings and people in the US without permission may also be placed into removal proceedings. Removal proceedings used to be called deportation proceedings and many people still use the term “deportation.”

Removal proceedings are similar to other courtroom settings. There is an immigration judge, an attorney representing the government (“ICE attorney”) and a translator. In most cases, the ICE attorney is presenting the government’s position which is that the person has done something wrong and is “removable” from the US. The person is given an opportunity to submit applications for relief from removal and may be able to stay in the US.

How does on get into removal proceedings?

There are several ways a person winds up in removal proceedings.
The 3 most common ways are:

  • 1

    A person commits a crime, US Immigration and Customs Enforcement (“ICE”) learns of the crime and then decides to place the person into removal proceedings.

  • 2

    A person has applied for Political Asylum and/or Withholding of Removal and/or Protection under the Convention Against Torture (“CAT”) and the application has been denied.

  • 3

    The person is caught and it is determined that the person has no permission to be in the US. An example of this would be a worksite raid.

An example to describe how the removal process works:

Elvis is a lawful permanent resident of the US. He was arrested and charged with domestic violence for hitting his spouse in the head with a bowling ball. He is convicted in State court and is sentenced to 2 years in prison.

Prior to his release from State prison, ICE requests that Elvis be turned over to them so that they may initiate removal proceedings against him. On the day Elvis is to be released from State prison, ICE shows up and takes Elvis into ICE custody.

Elvis is now in a jail run by ICE. ICE has the discretion to set a bond so that Elvis may be released from custody as he goes through the removal process. If ICE does not approve a bond or sets the bond amount too high, Elvis has a right to a bond hearing before an immigration judge. The immigration judge will determine whether Elvis is a danger to the community and/or a flight risk. If the judge rules in Elvis’ favor and grants bond, then Elvis may be released from custody. If the bond request is denied, Elvis may appeal but will remain in custody during the appeal process.

After the bond hearing, the immigration judge will conduct a master calendar hearing. Elvis will be served a Notice to Appear (“NTA”) which is the charging document (similar to a criminal complaint). The NTA explains why the government wants to remove Elvis from the US. Elvis may admit or deny the charges against him.

If it is determined that Elvis is removable, then the immigration judge will schedule an individual hearing. Applications for relief must be filed at least 15 days before this hearing. The most common applications for relief include:

  1. Cancellation of Removal for lawful permanent residents;
  2. Cancellation of Removal for non-lawful permanent residents;
  3. Adjustment of Status;
  4. Waivers for criminal conduct.
  5. Political Asylum and/or Withholding of Removal and/or Protection under the Convention Against Torture (“CAT”)

In addition, denied applications for Political Asylum and/or Withholding of Removal and/or Protection under the Convention Against Torture (“CAT”) may also be renewed before the immigration judge.

At the individual hearing, Elvis will present his case to the immigration judge. Testimony will be taken from Elvis and any witnesses he wishes to call. The ICE attorney will also be able to ask questions of Elvis and any of his witnesses. If the ICE attorney calls witnesses, Elvis will also be able to ask questions of those witnesses.

At the end of the hearing, the immigration judge will usually make a decision. In certain circumstances, the immigration judge may issue a written decision at a later time. If the immigration judge grants any of Elvis’ applications for relief, then Elvis may remain in the US. The ICE attorney has the right to appeal the decision to the Board of Immigration Appeals (“BIA”). If the immigration judge denies all applications for relief, then in most cases, Elvis may also appeal the decision to the BIA.

This example is to provide you with a general overview of the removal process. Scroll down to review the most common applications for relief.

Jim to Go Daddy: Here is the description of the 5 common applications for relief.