Removal proceedings commence when the Department of Homeland Security files a Notice to Appear (“NTA”) with the Immigration Court. At that point, the foreign national will be instructed they have to appear in court on the charges contained in the NTA.
Removal proceedings can best be viewed as having two stages. The first is the removability stage. This is when the judge makes the determination of whether the foreign national is removable as charged in the NTA. Immigration lawyers too often concede removability in immigration court. There are often ways to successfully challenge whether a person is subject to removal. It may be that the criminal conviction does not trigger a ground of removability or that the charge is factually or legally incorrect. DHS bears the burden of proof on this issue. It is important to speak with an experienced lawyer who can determine whether a challenge should be made to removability.
If a foreign national is found to be subject to removal, the next stage of the case is determining whether the individual is eligible for any relief from removal (deportation). If there is any relief available, the foreign national must file the appropriate relief application with the Immigration Court, and the case will be scheduled for a hearing.
The following are common relief applications that can be filed with the Immigration Court:
- Asylum, withholding of removal, and protection under the Convention Against Torture (CAT)
- Cancellation of removal for lawful permanent residents or non-lawful permanent residents
- VAWA cancellation of removal
- Adjustment of status
- Waivers including for fraud (INA §212(i)), criminal inadmissibility (INA § 212(h)), and INA §237(a)(1)(H) waivers
- Voluntary departure
Each application has specific requirements and must be supported by documentation. A hearing will be held on the application and the applicant and other witnesses will be permitted to testify. The Immigration Judge will then issue a decision in the case.
In certain circumstances, an individual who has been ordered removed may be eligible to file a motion to reopen. The general rule is that a motion to reopen must be filed within 90 days of the final removal order. However, there are no time limits to filing a motion to reopen to apply for asylum based on changed country conditions. Additionally, there is not a time limit for filing a motion to reopen to rescind an in absentia order of removal where the foreign national does not appear for court if the motion is based on lack of notice. A motion to reopen to rescind an in absentia order has a 180-day time limit if it is based on exceptional circumstances for failing to appear. The Board of Immigration Appeals or an immigration judge can reopen a case sua sponte at any time. Additionally, there are no time or number limits for filing if the motion to reopen is agreed upon by both parties.
An individual may also file a motion to reconsider within 30 days of the decision in his or her case. The motion must set forth the errors of fact or law in the decision and be supported by pertinent authority.
It is important to understand that filing a motion to reopen or a motion to reconsider does not toll the time for filing a petition for review in the federal appeals court.
Engaging the services of an attorney who is experienced in removal defense can be essential to ensuring that an individual knows their rights and has a full and fair opportunity to pursue all available options before the courts.