IMMIGRATION COURT PROCEDURES AND ALIENS' RIGHTS

 

More than ever, the Immigration & Customs Enforcement is focusing their activities on the removal of foreign nationals whom they believe are deportable under section 237 of the Immigration & Nationality Act or inadmissible under section 212 of the Act. The process is now known as removal proceedings.  

Removal proceedings begin with the issuance of a Notice to Appear (NTA). The Notice to Appear outlines the allegations against the foreign national and the factual basis for the Department's belief that he or she is removable. It is important to note that the Notice to Appear must be served on the foreign national or to his or her authorized representative. The Notice to Appear will also inform the foreign national of the time and place of their hearing before the Immigration Judge. Once served with the Notice to Appear the foreign national MUST appear at the designated time and place. If an alien fails to appear at a scheduled hearing (except under exceptional circumstances, such as a serious illness to the alien or death of an immediate family member), not only can an alien be ordered deported in absentia, but he or she can also become ineligible for further relief later, such as voluntary departure, adjustment of status, and cancellation of deportation.

At the hearing, the alien is entitled to Due Process of law and will be permitted to be represented by an attorney, at no cost to the government. In addition, the alien will be given a reasonable opportunity to examine the evidence against the alien (except for national security information), to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the government. A complete record shall be kept of all testimony and evidence produced at the hearing. Below is a list of common issues arising in the context of removal proceedings.

What if the foreign national is detained?

Many times, Immigration & Customs Enforcement (ICE) will detain persons who are subject to removal proceedings. This happens frequently in my local area (Charlotte, North Carolina) because of the authority given to the local Sheriff's Department to inquire about a defendant's immigration status. Upon arrest, if the arresting officer becomes aware that the individual is not present in the country legally, a "hold" will be placed on the individual. Formally known as a detainer (pursuant to section 287(g) of the Immigration & Nationality Act) the "hold" notifies the state authorities that ICE believes the individual to be deportable and serves to transfer custody to ICE upon the satisfaction of their state charges. Once ICE has custody of the individual they can set a bond amount on their case. Payment of the bond to the local ICE authorities will effect the individual's release until their court date. However, if the local ICE authorities decline to set a bond amount, the individual must make a motion to the Immigration Judge having jurisdiction over his case in order to determine if he or she can be released. The primary issues in a bond hearing before the Immigration Judge are (a) whether the individual is a danger to the community, and (b) whether the Judge feels that the individual is a flight risk. The Judge may also consider what form of relief, if any, the individual is eligible for in the removal proceeding. Forms of relief will be discussed in a later section. Both evidence and testimony can be presented in the course of the bond hearing. If the Judge issues a bond amount it can be paid at any ICE office.

Obviously, an individual who has been convicted of a criminal offense or offenses will have a much more difficult time obtaining a bond from either the local ICE officials or the Immigration Judge. In fact, pursuant to section 236(c) of the Immigration & Nationality Act, some may not be eligible for release due to the serious nature of their convictions. Also, those individuals who are considered "arriving aliens" or individuals who have been previously deported or removed are not eligible for release.

What will happen at my hearing?

Typically, the first hearing in removal proceedings is a Master Calendar hearing. At this hearing the Immigration Judge will take pleadings on the charge or charges contained in the Notice to Appear. Individuals may either admit or concede any of the charges contained in the Notice to Appear. It is important to note that the Department has the initial burden of establishing that the individual is not a US citizen.

The immigration service has the initial burden of proving that the person in court is not an US citizen. If the service cannot prove this point, then the judge must dismiss or terminate proceedings because of lack of jurisdiction, since a judge can only preside over cases involving non-US citizens. If INS proves that the person is not an US citizen, or if the alien admits this, then the burden shifts to the alien. If the alien is an applicant for admission, then he or she must show beyond doubt that he or she is entitled to be admitted, and is not inadmissible under section 212. If the alien had been admitted to the US, then he or she must show by clear and convincing evidence that he or she is lawfully present pursuant to a prior admission. To meet this burden, the alien is entitled to have access to the alien's visa or other entry document, if any, and any other records and documents, not considered being confidential, about the alien's admission or presence in the United States.

If the person shows that he or she is lawfully present under a prior admission, the burden shifts to the INS to prove that he or she is deportable. The decision of the immigration judges on deportability must be based on reasonable, substantial, and probative evidence.

Either the alien, or the immigration service, may appeal the decision of the immigration judge, which appeal would be filed with the Board of Immigration Appeals in Falls Church, Virginia. Sometimes, the alien or the immigration service may choose to file a motion to reopen or motion to reconsider instead.