What does removal mean?
It is an administrative or a judicially ordered removal of a non-citizen from the United States to the designated country. Both removal and deportation mean the same.
Who has the burden of proof in removal proceeding?
It depends on the person seeking relief. If the alien is seeking relief, the burden of proof is on the alien, however if the government is seeking relief against the alien the government bears the burden. An alien is removable either on the basis of inadmissibility or deportability. When an alien is not considered admitted under the immigration laws, he bears the burden of proof of his lawful entry etc. However, if his presence in the country is pursuant to an “entry” that was both “lawful” and “authorized” by an immigration officer, the government bears the burden of establishing the fact of removability. Thus, the burden of proof in removal proceedings differs, depending on an alien's immigration status at the time his proceedings are commenced. In particular, an individual who is an “applicant for admission” to the United States at the time of his removal proceeding is deemed to be legally at the border and bears the burden of establishing that he “is clearly and beyond doubt entitled to be admitted and is not inadmissible ... or ... by clear and convincing evidence, that [he] is lawfully present in the United States pursuant to a prior admission.” 8 U.S.C. § 1229a(c)(2). By contrast, in a removal proceeding commenced after an alien has been formally “admitted” to the country, “the Service [i.e., the government] has the burden of establishing by clear, convincing evidence that ... the alien is deportable,” 8 U.S.C. § 1229a(c)(3)(A).
A lawful prominent resident is also deemed to be seeking entry upon his arrival to United States, however the concerned Supreme Court has recognized that it is the government in that case to bear the responsibility of burden of proof. “In denaturalization cases the Court has required the Government to establish its allegations by clear, unequivocal, and convincing evidence. The same burden has been imposed in expatriation cases. That standard of proof is no stranger to the civil law. No less a burden of proof is appropriate in deportation proceedings.” Woodby v. Immigr. & Naturalization Serv., 385 U.S. 276, 285–86 (1966). In another case, a lawful permanent resident was put in expedited removal without formal hearing, the Supreme Court checked the same and held that resident alien had due process rights with an alien interest more entrenched in society with time creating more rights. Kwong Hai Chew v. Colding, 344 U.S. 590, 598 (1953)(“accord[ing] a generous and ascending scale of rights as he increases his identity with our society”).
“The INA states that an alien applying for relief or protection from removal has the burden of proof to establish” that he “satisfies the applicable eligibility requirements” and that he “merits a favorable exercise of discretion. 8 U.S.C. § 1229a(c)(4)(A).” Pereida v. Wilkinson, 141 S. Ct. 754, 760 (2021). Also, those claiming to seek discretionary relief of cancellation of removal [based on more than 10 years of residency in US], then it is the alien seeking relief that bears the burden of proof.
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How is removal initiated?
A removal proceeding before an immigration judge commences when a charging document is filed under 8 C.F.R. § 1003.14; 8 USC § 1229(a)(1)(G)(i). A charging document means the written instrument which initiates a proceeding before an Immigration Judge. It usually is a document by an immigration-enforcement officer signed Form I-862, captioned “Notice to Appear” (“NTA”). Also, “the charging document must include a certificate showing service on the opposing party [You] pursuant to § 1003.32 which indicates the Immigration Court in which the charging document is filed.” 8 C.F.R. § 1003.14(a). Upon its filing, the immigration law provides that “[a]n immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.” Section 1229a(a)(1) of Title 8. When there is no valid charging document, the Immigration Judge does not have jurisdiction to conduct removal proceedings. However please note that, it is the regulatory definition of "notice to appear," (8 C.F.R. § 1003.15(b)-(c)) and not the statutory definition in § 1229(a), that "control[s] when and how," a case is commenced before an immigration judge for purposes of § 1003.14(a). 8 U.S.C. § 1229(a), is silent as to the jurisdiction of the Immigration Court," the regulatory definition [of Notice of Appear] . . . governs the Immigration Court's jurisdiction." The contents of a "notice to appear" filed to commence immigration court proceedings, do not cross-reference § 1229(a) or otherwise incorporate that provision's requirements. Instead, the regulations set out a detailed and exhaustive list of their own, enumerating twelve separate items that must be included in a notice to appear filed under § 1003.14(a). So, it is the regulatory definition in § 1003.15(b)-(c) that controls the required content of a "notice to appear" to initiate proceedings before an immigration judge. In re Bermudez-Cota, 27 I. & N. Dec. 441, 443-45 (B.I.A. 2018). Thus, it is the regulatory definition of a "notice to appear" - not the definition at 8 U.S.C. § 1229(a) - that controls whether the government properly initiated an immigration proceeding under 8 C.F.R. § 1003.14(a). When there is no valid charging document, the Immigration Judge does not have jurisdiction to conduct removal proceedings.").
Frequently asked questions regarding Removal & Removal Proceeding
Where is the Notice to Appear (Order to Show Cause) filed?
The DHS picks up the place for removal proceeding. It is called venue. Venue lies at the Immigration Court where jurisdiction vests pursuant to § 1003.14. And “jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court.” 8 C.F.R. § 1003. 14(a). The Immigration Judge, for good cause, may change venue only upon motion by one of the parties, after the charging document has been filed with the Immigration Court. Good cause is determined by balancing such factors as administrative convenience, the alien's residence, the location of witnesses, evidence and counsel, expeditious treatment of the case, and the cost of transporting witnesses and evidence to a new location.
The Immigration Judge may grant a change of venue only after the other party has been given notice and an opportunity to respond to the motion to change venue. No change of venue shall be granted without identification of a fixed street address, including city, state and ZIP code, where the respondent/applicant may be reached for further hearing notification. 8 C.F.R. 1003.20.
However, despite the foregoing, the alien might have a limited success on the venue. Venue is arbitrarily fixed by the filing of the NTA at ICE’s choice and place of detention (which is never static, we have seen alien tossed around the country). Gandarillas–Zambrana v. BIA, 44 F.3d 1251, 1256 (4th Cir.1995) (“The INS necessarily has the authority to determine the location of detention of an alien in deportation proceedings ... and therefore, to transfer aliens from one detention center to another.”).
For instance, a New York based alien could be arrested and removed to Florida and tried there with an NTA opening charges in a Florida based immigration court. Despite the fact venue is an important ingredient of a personal freedom or might entail constitutional dimensions of due process, the Immigration removal venue is too straight jacket a process. The alien suffers the arbitrary discretion of the immigration law enforcement agencies.
Legally, a decision to initiate removal proceedings must be made “within 48 hours of the arrest, except in the event of an emergency or other extraordinary circumstance.” 8 CFR § 287.3. And under the emergency, “a determination will be made within an additional reasonable period of time, whether the alien will be continued in custody or released on bond or recognizance and whether a notice to appear and warrant of arrest.” Id. ICE can sit on it for days and would have enough time to move the detainee around and have it put in a place where it could file the NTA. Normal circumstances, i.e. 48 hours time means that the detainee could have been put in removal at the place of his arrest. Indeed, ICE may decide for operational or other reasons to transfer a detainee from the jurisdiction where the detainee was arrested to a detention facility outside of that jurisdiction, pursuant to their own guidelines. See 8 U.S.C. § 1231(g)(1) (“The Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal.”)
Thus, ICE files the Notice to Appear with the immigration court that has jurisdiction over the receiving detention facility. The transfer motion even if granted might already be late, for removability might have been substantially decided by the time of entry of removal over.
ICE claims that it has a nationwide jurisdiction in terms of initiating the removal proceeding by filing NTA at its choicest place. The notorious case is that of a Sinclair a resident of New York who was convicted of criminal sale of a controlled substance. An NTA was filed with an immigration court in Pennsylvania and not New York. Sinclair claimed violation of due process clause. He claimed that he lived in New York, committed the offense underlying his removal in New York, and had no ties to Pennsylvania, his removal hearing should have been conducted in New York rather than York, Pennsylvania. The Court of Appeals of the Third Circuit held that, “While the Immigration Court was geographically located within Pennsylvania, it exercised the sovereign power of the United States.” Sinclair v. Atty. Gen. of U.S., 198 F. App'x 218, 222 (3d Cir. 2006).
What must be the content of the Notice to Appear?
To constitute a valid charging document, the regulations require that notice to appear list the nature of the proceedings, the legal authority for the proceedings, and the warning about the possibility of in absentia removal. The government must include the time, date, and place of the initial hearing only where practicable. The NTA is like an indictment or a complaint which commences a proceeding against a person. Pursuant to 8 U.S.C. § 1229(a)(1)(D), every NTA must include a description of the charges against the alien as well as the statutory provisions he is charged with having violated. Also since it is like a complaint or an indictment, it can be amended to included more offenses or grounds for the removal, as a superseding indictment. By its own regulation, the government is entitled to lodge ‘additional or substituted charges' of removability ‘[a]t any time during the proceeding.” See 8 C.F.R. § 1240.10(e)). Additionally, there is no requirement that the [government] advance every conceivable basis for deportability in the original show cause order. Cheung v. Holder, 678 F.3d 66, 70 (1st Cir. 2012). Also remember that if a NTA appears to lack any relevant information, it can be amended or the court can provide at a later time the missing information. A defect of ministerial details is not enough to void a NTA or Immigration Judge rulings if any under the alleged NTA
What happens in the Immigration Court?
The Immigration Court is presided over by an immigration judge. The term “immigration judge” is defined in 8 U.S.C. § 1101(b)(4) to mean “an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 1229a of this title. “Immigration Judges, meanwhile, are under the supervision and direction of the Chief Immigration Judge, who has “no authority to direct the result of an adjudication assigned to another immigration judge.” 8 C.F.R. §1003.9(b), (c). The Chief Immigration Judge is responsible for the general supervision, direction, and scheduling of the Immigration Judges in the conduct of the various programs assigned to them.
Keep in mind, an immigration court is not an Article III court (constitutional court) and a removal proceeding is an agency process, not an Article III adjudication. So not all nuances etc. applicable in the regular courts could apply in a immigration context. As the Supreme Court has instructed, “we should not reflexively extend to agencies . . . the very real division between the jurisdictional and non-jurisdictional that is applicable to courts." City of Arlington v. FCC, 569 U.S. 290, 297 (2013). Rather, because the power of administrative agencies (unlike courts) is prescribed entirely by statute, any "improper[]" agency action is "ultra vires," and there is "no principled basis for carving out some arbitrary subset" of agency errors as "jurisdictional."
The immigration judge conduct proceedings for deciding the inadmissibility or deportability of an alien.” 8 U.S.C. § 1229a(a)(1). Charges from the charging document NTA are read and if the alien admits to the charges, the alien is removable. This is the first time that the alien appears before the immigration judge. It is called a Master Calendar Hearing. It is a recorded hearing. Also an interpreter is provided if needed.
At the conclusion of the proceeding the immigration judge shall decide whether an alien is removable from the United States. The determination of the immigration judge shall be based only on the evidence produced at the hearing.” Id. § 1229a(c)(1)(A). And an Immigration Judge’s decisions are reviewed on appeal by the BIA: a division of the EOIR separate and apart from the Office of the Chief Immigration Judge and with no direct supervisory authority over Immigration Judges. 8 C.F.R. § 1003.1. Immigration Judges are also independent of the agency responsible for enforcing the federal immigration laws: the United States Citizenship and Immigration Services. Further, an “immigration Judge's role in immigration proceedings as sufficiently “functionally comparable” to that of a judge. Immigration Judges possess many of the same powers as a trial judge. These powers include the power to subpoena witnesses and evidence, to administer oaths, to receive and rule on evidence, to question parties and witnesses, to issue sanctions, to make credibility determinations, and to render decisions. Stevens v. Osuna, 877 F.3d 1293, 1302 (11th Cir. 2017). Immigration Judges are professional hearing officers. In deciding cases before them, Immigration Judges are required to exercise “independent judgment and discretion” and to resolve issues in an “impartial manner. Immigration Judges are also bound both by agency precedent, and by precedent established by the federal appellate courts. But, the BIA decisions, which federal courts treat as the equivalent of administrative interpretations, are only binding on immigration courts in the absence of an interpretation by either the judicial circuit in which the immigration court sits.
Now once the alien is before the Immigration Judge, it has been held that Due Process Clause requires an immigration judge to advise a noncitizen of his eligibility for relief from deportation and “give him an opportunity to develop the issue.’ ” U.S. v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). Due Process applies to everyone with the United States. “[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). And it entails, “a full and fair hearing requires that an alien have “a reasonable opportunity to examine the evidence against him, to present evidence on his own behalf, and to cross-examine witnesses presented by the government. At such hearings, an Immigration Court should avoid excessive deference to the government or a shallow evaluation of the evidence . . . A due process violation occurs ... when the proceeding is ‘so fundamentally unfair that the alien was prevented from reasonably presenting his case.’ Juncaj v. Holder, 316 F. App'x 473, 479–80 (6th Cir. 2009).
It has been declared that an “Immigration judges also have a duty to develop the administrative record. In light of this requirement and the fact that “many aliens are uncounselled, our removal system relies on IJs to explain the law accurately to pro se aliens. Otherwise, such aliens would have no way of knowing what information was relevant to their cases and would be practically foreclosed from making a case against removal. For example, as noted, by the immigration judge must “inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in [Chapter V of Title 8 of the Code of Federal Regulations],” which include asylum, and “afford the alien an opportunity to make application during the hearing, in accordance with the provisions of § 1240.8(d).” 8 C.F.R. § 1240.11(a)(2), (b).” United States v. Ordonez, 328 F. Supp. 3d 479, 502 (D. Md. 2018). Also there could be circumstances wherein the alien or his lawyer has entered into an agreement with the government, in such a situation, the immigration judge does not have to have a hearing. See 8 C.F.R. § 1003.25(b) which provides in full:
An Immigration Judge may enter an order of deportation, exclusion or removal stipulated to by the alien (or the alien's representative) and the Service. The Immigration Judge may enter such an order without a hearing and in the absence of the parties based on a review of the charging document, the written stipulation, and supporting documents, if any. If the alien is unrepresented, the Immigration Judge must determine that the alien's waiver is voluntary, knowing, and intelligent. The stipulated request and required waivers shall be signed on behalf of the government and by the alien and his or her attorney or representative, if any. The attorney or representative shall file a Notice of Appearance in accordance with § 1003.16(b). A stipulated order shall constitute a conclusive determination of the alien's deportability or removability from the United States.
Notice to Appear triggered proceedings are civil or criminal?
“A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering or remaining unlawfully in this country is itself a crime.” I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). That sums up. Since it is a civil proceeding, several of the safeguards provided in criminal proceeding are provided for by the immigration law. So, no constitutional right to a defense counsel and no protection from the Fourth Amendment which protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “An alien in removal proceedings is entitled only to the Fifth Amendment guarantee of fundamental fairness.” Schroeck v. Gonzales, 429 F.3d 947, 952 (10th Cir. 2005). “[T]he Due Process Clause protects an alien subject to a final order of [removal], though the nature of that protection may vary depending upon status and circumstance.” Zadvydas v. Davis, 533 U.S. 678, 693–94 (2001)
Is everyone entitled to hearing before an immigration judge before order of removal?
No, now most non-citizens are ordered removed through streamlined proceedings—expedited removal, administrative removal, and reinstatement of removal—that do not involve a hearing before an immigration judge. The proceedings are summary in nature and conducted by front-line immigration enforcement officers employed by DHS.
How does administrative removal work?
Summarily put, the Department commences administrative removal proceedings by serving you with a “Notice of Intent to Issue a Final Administrative Removal Order.” 8 C.F.R. § 238.1(b)(2). The notice must allege each of the three predicates necessary to trigger eligibility for administrative removal--(1) is not a citizen of the United States; (2) has not been lawfully admitted for permanent residence; and (3) has been convicted of an aggravated felony. 8 U.S.C. § 1228(b)(1), (2); 8 C.F.R. § 238.1(b)(1). The notice must also advise you of certain rights, among them the right to be represented by counsel of your choosing at no expense to the government, the right to rebut the charges against you, and the right to request withholding of removal if you fear persecution or torture in the country to which you would be removed. § 238.1(b)(2)(i). Upon service of the notice, you have ten days to file a response. In the response, you can (among other things) attempt to rebut the charges, request an opportunity to review the government's evidence, and request withholding of removal. Alternatively, you can waive the right to pursue any of these options and concede that you are removable as charged. If you do not file a response, or if you concede that you are removable as charged, a DHS official known as the deciding officer will issue a “Final Administrative Removal Order,” which for ease of reference we will simply call a removal order. To allow an opportunity for judicial review, the order may not be executed for 14 days unless you waive that waiting period in writing. 8 U.S.C. § 1228(b)(3); 8 C.F.R. § 238.1(f)(1).
Can the DHS detain the alien pending the decision of removal?
8 U.S.C. § 1226(a) permits detention of an alien “pending a decision [in the removal hearing] on whether the alien is to be removed from the United States.”
What happens when you do not attend removal hearing?
It is fatal. If you are properly served with the “written notice required [under] section 1229(a)” fails to appear at a removal proceeding, you “shall be ordered removed in absentia” if the Government “establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable.” § 1229a(b)(5)(A). Also remember you might be ineligible for certain reliefs.
What happens once the removal order is entered against the alien?
Once an alien is ordered removed, the alien then enters the “removal period,” as defined in section [W]hen an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the removal period).” 8 U.S.C. § 1231(a)(1)(A).
When does the 90 days removal period starts?
The 90-day removal period pursuant to law 8 U.S.C. § 1231(a)(1)(B). begins on the latest of:
(i) The date the order of removal becomes administratively final. (ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order. (iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.
Is the alien detained or free for the 90 days period?
The law mandates that, “[d]uring the removal period, the Attorney General shall detain the alien.” 8 USC § 1231(a)(2). This, “post-removal-period detention statute applies to certain categories of aliens who have been ordered removed, namely, inadmissible aliens, criminal aliens, aliens who have violated their nonimmigrant status conditions, and aliens removable for certain national security or foreign relations reasons, as well as any alien who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal.” Zadvydas v. Davis, 533 U.S. 678, 688 (2001). However, the Department of Homeland Security will review if the continued detention is required. If the alien causes a danger to the public, detention shall continue and such a concern is put before the immigration judge for a ‘reasonable cause hearing.” The burden is on the DHS to prove with clear and convincing evidence. DHS shall attach a written statement that contains a summary of the basis for the Commissioner's determination to continue to detain the alien, including a description of the evidence relied upon to reach the determination regarding the alien's special dangerousness. The Service shall attach copies of all relevant documents used to reach its decision to continue to detain the alien. 8 CFR 1241.14. The Immigration judge shall consider the following factors among others:
(i) The alien's prior criminal history, particularly the nature and seriousness of any prior crimes involving violence or threats of violence;
(ii) The alien's previous history of recidivism, if any, upon release from either Service or criminal custody;
(iii) The substantiality of the Service's evidence regarding the alien's current mental condition or personality disorder;
(iv) The likelihood that the alien will engage in acts of violence in the future; and
(v) The nature and seriousness of the danger to the public posed by the alien's release.
The Immigration regulations. 8 CFR 1241.14. The DHS has to prove the foregoing with clear and convincing evidence. The clear and convincing evidence is such evidence that produces an an abiding conviction that the truth of the factual contentions are highly probable. Colorado v. New Mexico, 467 U.S. 310, (1984)).
What can an alien do if the detention is for an indefinite period?
One could always knock at the federal court doors with a Habeas relief. “We note at the outset that the primary federal habeas corpus statute, 28 U.S.C. § 2241, confers jurisdiction upon the federal courts to hear these cases.” Zadvydas v. Davis, 533 U.S. 678, 687 2001). The good news that there is law that “authorize indefinite, perhaps permanent, detention” and “once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute.” Id.