The Removal Process
Deportation is the legal process in which a foreign national (meaning a foreigner who is not a naturalized citizen) is formally removed from the United States for violating the U.S. immigration laws.
While U.S. Citizenship and Immigration Services (USCIS) is the government agency that handles lawful immigration into the U.S., a different agency known as the Executive Office for Immigration Review (EOIR) oversees the court procedures when a foreign national is brought before an immigration judge. The EOIR is a division within the Department of Justice that is responsible for conducting immigration court proceedings, appellate reviews, and administrative hearings. Some of the types of proceedings an immigration judge may preside over are briefly discussed below.
Removal hearings are conducted to determine whether certain individuals are subject to removal from the United States. The removal process begins when the Department of Homeland Security (DHS) files a document called a "Notice to Appear" (Form I-862) with the immigration court after it is served on the foreign national. The notice tells the individual to appear before an immigration judge, and includes the following information:
Nature of the proceedings
Legal authority under which the proceedings are being brought
Foreign national's alleged acts that violated the law
Charges filed against the foreign national and the statutory laws that have been allegedly violated
Foreign national's ability to be represented by an attorney at his/her own expense
Consequences of failing to appear at scheduled hearings
Requirement that foreign national provide the Attorney General with a current address and telephone number
The outcome of most removal proceedings depends on whether the foreign national is eligible for relief from removal. Immigration law provides relief from removal to individuals who meet specific criteria. In most removal proceedings, individuals admit that they are removable, but then apply for one or more forms of relief. A list of different types of relief can be found here.
The first hearing in an immigration case is often called the "master hearing." This can either be one or a series of hearings before the removal trial. After the initial master hearing, a foreign national can set future master hearings in order to secure additional documents, prepare evidence, conduct discovery, or await the status of the pending application with the USCIS. Typically, during a master hearing an immigration judge will ask either the foreign national or his or her lawyers the following questions:
Foreign national's name
Foreign national's address
Whether the foreign national wants the attorney next to him or her to represent the foreign national in these proceedings
Whether the foreign national understands the language of the proceedings or requires a translator
If the foreign national requires a translator, in what language would the translation be needed
In some case, the master hearings can be the only hearings that a foreign national receives. If a foreign national admits to sufficient facts that allow a court to find that removal is proper, the master hearing will be the foreign national's final hearing.
The trial during a DHS deportation case is called the "individual hearing." At this hearing, the DHS must prove by "clear, convincing, and unequivocal evidence" that the foreign national is removable. Like a trial, at the individual hearing the foreign national or his or her attorney must make an opening statement, examine witnesses, prepare exhibits, and make a convincing case that removal is not appropriate. For these reason, having an immigration attorney for this process can be extremely helpful and important to a foreign national's case.
Bond Redetermination Hearings
In some cases, a foreign national who is detained by DHS can be released from custody upon payment of a bond. A bond for legal purposes is an amount of money paid as bail that is forfeited if a person fails to appear at a required hearing. Initially, the bond is set by DHS. Afterwards, the foreign national can make a request to the immigration judge to conduct a "bond hearing" where the immigration judge has the authority to re-determine the amount of the bond set by DHS. A decision of a bond hearing can be appealed (by either the foreign national or by DHS) to the Board of Immigration Appeals (BIA).
An immigration judge conducts a withholding-only hearing to determine whether a foreign national who has been ordered removed is eligible for withholding of removal under the Immigration and Nationality Act or the Convention Against Torture.
An immigration judge will conduct a rescission hearing to determine whether a lawful permanent resident should have their residency status revoked because they were not entitled to receive it when it was granted.
Getting Legal Help
Immigration laws are subject to change. It is important to consult a competent immigration attorney or the Department of Justice website for the most up-to-date rules and regulations regarding the removal process. Visit FindLaw's sections on deportation and removal for more articles and information on this topic.