One of the most stressful immigration processes is when you (or a loved one) is in immigration court. A removal proceeding (previously known as a "deportation" proceeding) is, by its nature, the end of the line for most people. U.S. Immigration and Customs Enforcement ("ICE," the immigration enforcement arm of the U.S. Department of Homeland Security) knows about you, they want to remove you from the United States, and they are litigating before an immigration judge to get a removal order against you. When I consult with people about their removal case, they consistently ask the same questions. Here are 7 of the most Frequently Asked Questions (FAQs) about being in immigration court:
Can I Stay In the United States? The (admittedly unsatisfactory) answer to this question is: It depends. All of the following can impact the kind of benefit or waiver you might be eligible for, that would allow you to stay in the United States: Your current immigration status (for example, do you have permanent residency status), the amount of time you have lived in the U.S., the reason(s) you are in removal proceedings, whether you have U.S. citizen or permanent resident relatives, what kind of harm (if any) you may have experienced in your home country, and the way you entered the United States (with or without a visa).
Why Am I Being Detained? I Already Did My Time For My Conviction. I'll start by saying that most people in immigration court are not detained by ICE. But for those who are, many of them (understandably), do not realize that ICE has the authority to detain non-U.S. citizens for certain types of immigration violations. This means that, even if you completed your sentence for any criminal conviction, ICE can still arrest and detain you for non-criminal immigration violations.
If I Am Detained, Can I Get a Bond? This is the first question someone will ask if they are arrested and detained by ICE. Unfortunately, it is one of the most complex areas of immigration law. I wrote an article for Nolo Press on this question, but the best course of action is to consult with an immigration attorney with a lot of experience in detained removal proceedings.
What Is Going to Happen In Court? The first hearing you will have before an immigration judge will be a "Master Calendar" hearing. A Master Calendar hearing is similar to a preliminary hearing in criminal court, where the government (in this case, ICE) might present evidence against you to prove the allegations against you, that is, the reason(s) ICE believes you should be removed from the United States. (These allegations are found in a document called, the Notice to Appear.) The immigration judge might ask you to "plead" to the allegations in the Notice to Appear. This means you will need to answer whether you admit or deny the allegations. If you are not ready to plead, the immigration judge might continue your Master Calendar hearing to another date, to give you time to prepare or to find an attorney. Some immigration judges want you to enter your pleadings in writing. Once the pleadings are done, if you deny that you should be removed from the United States, or you want to apply for an application that will allow you to remain in the United States, your case will be scheduled for an Individual Hearing. It is at the Individual Hearing, that you will present testimony in support of any applications and supporting documents you have filed with the immigration court. And at the conclusion of the Individual Hearing, the immigration judge will decide whether you can remain in the United States.
How Long Will I Need to Wait for My Individual Hearing? Unfortunately, the answer to this question is also "it depends." Things like the number of cases on a judge's docket (some cities in the U.S. have larger dockets than others); the priorities of a presidential administration; whether the immigration court considers your case to be a "priority"; whether ICE needs time to prepare for your case; whether you have "good cause" to ask for a continuance; and the seriousness of your particular case, can all affect the amount of time (more or less) you will need to wait for an Individual Hearing.
What If the Immigration Judge Orders My Removal? Will I Need to Leave Right Away? One of the benefits of being before an immigration court in the United States is that you have certain rights. The same rights are not available to, for example, people who are outside of the United States and trying to get a visa before a consular officer. If the immigration judge denies any of your applications to stay in the U.S., you do have the right to appeal the immigration judge's decision to a higher administrative court, known as the Board of Immigration Appeals ("BIA"). And in some situations, even if the BIA rules against you, you might be able to file another appeal to a federal Court of Appeals.
Do I Need an Attorney? In most cases, if you want to remain in the United States, your chances of being able to do so will almost always improve if you have a removal defense attorney otherwise known as a deportation defense lawyer. One statistic from Syracuse University in 2017 showed that an applicant's chances of getting asylum improved by five times when they were represented (from 1 in 10 to 5 in 10). Unlike criminal proceedings, the federal government will not pay for an attorney for you. You will need to hire one, or find a pro bono attorney or one who works for a public interest group, who will agree to represent you at little or no cost. Being in removal proceedings, as mentioned above, is the end of the line. The ICE attorney prosecuting you has, at a minimum, received a fair amount of training in immigration law, and you will be in better hands having an advocate who can make the strongest arguments on your behalf. An immigration attorney will help you navigate the complex rules of the immigration court. And an experienced removal immigration attorney will help to prepare you for testimony so that, despite these stressful times, you will be as confident as possible when it is time for you to present your case to remain in the United States.