Regardless of your background or your citizenship status, it’s important to know that you are entitled to due process or fair treatment in the United States judicial system. It is possible to come in contact with the U.S. immigration court system as a foreigner or immigrant living in the United States. This article is an introduction to the U.S. immigration court system. Particularly, it explains what immigration court is, what types of cases lead to immigration court, and whether there is an opportunity to appeal immigration court decisions.
What Is Immigration Court?
In the United States, immigration-related cases are handled by the immigration court system, which consists of more than 70 immigration courts throughout the United States. The Executive Office for Immigration Review (EOIR) under the Department of Justice (DOJ) manages this court system.
Generally, immigration judges will judge whether a noncitizen can remain in the United States, but they also make rulings on the adjudication of asylum claims, removal proceedings, adjustment of status, cancellation of removal, and other waivers. After an immigration judge has made a decision in a case, the decision can be appealed to the next highest court in the system, the Board of Immigration Appeals (BIA). The BIA deals with all appealed immigration cases nationwide. You can appeal BIA decisions to the U.S. Court of Appeals and U.S. Supreme Court.
The immigration court system is made up entirely of civil courts. Criminal offenses are not part of immigration court proceedings. For example, if a federal prosecutor wanted to press criminal charges against a person for an offense such as illegal reentry, it would not be tried in an immigration court.
There is currently a large immigration case backlog of nearly 750,000 cases.
Why Do People Go To Immigration Court?
People often go to immigration court when U.S. Immigration and Customs Enforcement (ICE) takes them into custody to start the deportation process. A variety of situations can lead to this. For example, ICE could stop someone from unlawfully crossing a U.S. border, or a noncitizen could face conviction for a deportable crime. If you find yourself in immigration court, either ICE stopped you at a port of entry before you entered, you were already in the United States without being correctly admitted, or you were admitted but now may be deportable, such as for a criminal conviction.
One way to stop removal proceedings if you qualify as a refugee, is to request asylum when you appear before an immigration judge. You can also request asylum in the United States at a port of entry or apply for asylum with U.S. Citizenship and Immigration Services (USCIS).
What Happens After ICE Detains You?
After ICE detains you, they will refer your case to the Department of Homeland Security (DHS). DHS will decide whether your deportation is mandatory. If it isn’t, your attorney may be able to negotiate with ICE attorneys to stop your removal order.
First, respondents can have a bond hearing to ask the judge to release them from detention while the case is pending. This usually applies to everyone except for those convicted of serious crimes, who face mandatory detention. Serious crimes include ones involving firearms, extreme violence, or “moral turpitude” or immoral behavior like fraud.
You are entitled to a formal hearing before a judge if you are lawfully in the United States or have been in the United States continuously for more than two years. You have the right to try to establish eligibility for immigration benefits. Under immigration law, you are lawfully in the United States if you are a citizen or a lawful permanent resident or you have a valid visa.
In certain cases, if you are unlawfully in the United States, you may be subject to “expedited removal” or immediate deportation. Generally, this applies to people caught within 100 miles of the border and within two weeks of entering the United States unlawfully.
What Is a Notice To Appear?
If you are not subject to expedited removal, DHS will decide whether to start removal proceedings with a Notice To Appear (NTA).
Your NTA will include a hearing date and location for your Master Calendar Hearing (MCH) or initial hearing. The law guarantees you at least 10 days from your removal notice so you can find a lawyer. Usually, the MCH will be short. During this hearing, the judge will review your charges and set dates for submitting documents and for your main deportation hearing. This hearing is called the “merits hearing” or “individual hearing.”
What Happens During the Hearings?
During your hearings, the judge will first determine if you are legally removable. Then, the judge will ask you if you want to request any forms of relief. For example, you may want to seek asylum or request voluntary departure if the judge denies all other relief forms. Voluntary departure allows you to choose to leave the United States at your own cost and within a certain time frame. You can then avoid having an order of removal on your record.
It is essential to show up to all your hearings. Otherwise, the judge could order your removal in absentia. “In absentia” means while you are not present.
Note that because of the backlog on the legal docket, it could take several years to get a decision on your case. You should consider seeking legal advice from an immigration attorney. There are pro bono attorneys available through legal aid organizations.
Can You Appeal an Immigration Court Decision?
You can appeal an immigration judge’s decision through the Board of Immigration Appeals (BIA). The BIA decides appeals through paper reviews. Generally, they do not have actual courtroom proceedings. However, in rare cases, they may hear oral arguments at their headquarters.
BIA decisions are binding unless they are changed or overruled by the attorney general or federal courts. Unless the appeal is an issue of factual errors or credibility, the BIA handles all other cases “de novo.” "De novo" means that they do not reference the legal conclusions or assumptions made by the previous court.
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