Removal Proceedings Process
DHS initiates removal proceedings when it serves an alien with a Notice to Appear (NTA) and files that charging document with one of EOIR’s immigration courts. The NTA orders the alien to appear before an immigration judge and provides notice of several important facts, including: (1) the removal proceedings; (2) the alleged immigration law violations; (3) the ability of the alien to seek legal representation at no expense to the government; and (4) the consequences of failing to appear at scheduled hearings.
During removal proceedings, a DHS attorney from U.S. Immigration and Customs Enforcement represents the Government and presents evidence on the Government’s behalf. The alien, referred to as a respondent, may provide a defense to the charges or apply for any available and appropriate form of protection or relief from removal. Respondents may, at no expense to the Government, seek an attorney or other authorized representative to represent them before the immigration court. The immigration judge impartially and independently decides the case in accordance with applicable laws, regulations, and relevant case precedent.
When the immigration court receives the NTA from DHS, the court schedules an initial hearing before an immigration judge. At this hearing, called the master calendar hearing, the immigration judge explains the respondent’s rights and the alleged immigration law violations, and addresses representation. The immigration judge may also give the respondent the opportunity to plead to the factual allegations and charge(s) of removability. The immigration judge may then determine removability and, if found removable and the respondent wishes to apply for protection or relief from removal, the immigration judge will schedule an individual merits hearing, during which both the respondent and the DHS attorney may present arguments and evidence related to the respondent’s application. If the immigration judge finds the alien eligible for protection or relief from removal, the judge is then able to grant the application.
If the respondent fails to appear for a scheduled hearing, the immigration judge will conduct an in absentia hearing, which is a removal hearing without the respondent present. The immigration judge will order the respondent removed in absentia if DHS establishes by clear, unequivocal, and convincing evidence that: (1) the respondent is removable; (2) DHS served the respondent with a written NTA for the hearing that included information about the consequences of being absent for a hearing; and (3) the immigration court provided notice of the hearing to the address of record of the respondent or the respondent’s representative of record. Respondents are responsible for notifying the immigration court within five days of any change of address.
Forms of Protection or Relief from Removal
If an immigration judge finds that a respondent is removable as charged in the NTA, the respondent may apply for protection or relief from removal. What follows, while not exhaustive, is a list of the most common forms of protection and relief from removal.
Asylum
Asylum relief may be granted to eligible applicants, regardless of their country of origin, who are unable or unwilling to return to their country of nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence, because of past persecution or a wellfounded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion. An asylum application must be filed within one year of the applicant’s arrival in the U.S. unless the applicant demonstrates changed circumstances that materially affect the applicant’s eligibility for asylum or extraordinary circumstances related to the delay in filing the application.
When asylum applicants are granted relief, they are permitted to remain in the U.S. Asylum relief may also be granted to an applicant’s spouse and children who are in the U.S. and were included in the approved application. In time, asylees may apply for lawful permanent residence and, eventually, citizenship. In many cases, asylum applicants are eligible for work authorization 180 days after they file their asylum application.
An affirmative asylum application is one that an alien, who is not in removal proceedings, files with U.S. Citizenship and Immigration Services (USCIS), a component of DHS. A defensive asylum application is one a respondent files while already in removal proceedings.
Withholding of Removal
Withholding of removal is granted to qualified applicants who have established that it is more likely than not that their life or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion in the proposed country of removal.
An order granting withholding of removal prohibits an alien’s removal to the country where his or her life or freedom would be threatened, but allows possible removal to a third country where the alien’s life or freedom would not be threatened. Withholding of removal pertains solely to the applicant and, therefore, eligible family members must file their own individual applications for withholding of removal. This form of relief cannot lead to lawful permanent residence status or citizenship. A grant of withholding of removal does not entitle a respondent to a grant of work authorization. Convention Against Torture (CAT) CAT protections relate to the obligations of the U.S. under Article 3 of the United Nations
Convention Against Torture
This is an international treaty provision designed to protect individuals from being returned to countries where it is more likely than not that they would face torture inflicted by, at the instigation of, or with the consent or acquiescence of a person acting in an official capacity, such as a public official. In accordance with CAT, certain respondents may qualify to have their removal withheld or deferred. Protection under CAT is not relief from removal.
Cancellation of Removal
Cancellation of removal is a form of discretionary relief that is available to both certain legal permanent residents (LPRs) and non-LPRs, each with differing requirements:
• A respondent who is an LPR must have resided continuously in the U.S. for at least seven years, including at least five years as an LPR, and not been convicted of an aggravated felony. After establishing these requirements, an LPR respondent must also demonstrate that he or she warrants a favorable exercise of the court’s discretion.
• A respondent who is a non-LPR must have resided continuously in the U.S. for at least 10 years immediately preceding the cancellation application, be of good moral character during that time period, not have been convicted of certain criminal offenses, have a qualifying relative who is a U.S. citizen or LPR, and establish that the qualifying relative will suffer exceptional and extremely unusual hardship if the respondent is removed. After establishing these requirements, a non-LPR respondent must also demonstrate that he or she warrants a favorable exercise of the court’s discretion.
The law caps the number of cancellation of removal applications that may be granted to non-LPRs each year. This can cause delays in the issuance of the immigration judge’s decision following the final hearing.
