The Department of Homeland Security (DHS) is responsible for enforcing U.S. immigration law. When DHS charges a person with an immigration law violation, it serves the individual with a charging document called a Notice to Appear (NTA). The NTA lists the factual allegations and immigration law charges against the individual. DHS also files the NTA with the Immigration Court that has jurisdiction over the individual. Once the NTA is filed with the Immigration Court, the Court will set a date for the individual to appear for his or her hearing.
Basic Immigration Court Hearing Information
There are two types of Immigration Court proceedings. The first type of hearing is called a "master calendar hearing." During the master calendar hearing, the judge will review the respondent's rights and ask the respondent to plead to the allegations and charge(s) contained in the NTA. The judge may allow the respondent more time to find an attorney before moving forward. After taking pleadings, if the judge finds that the respondent is "removable" (deportable) based on the allegations and charge(s) in the NTA, then the judge will ask the respondent whether or not he or she will be applying for "relief" from removal and schedule a subsequent hearing if necessary.
The second type of hearing is called an "individual hearing." If a respondent is challenging whether or not he or she is "removable" or is applying for relief from removal, the immigration judge will schedule an individual hearing where the respondent can discuss the merits of his or her case. The judge may give an oral decision at the conclusion of the individual hearing, or the judge may issue a written decision at a later date depending on the availability of time and the complexity of the case.
Types of Relief Available
There are several forms of relief from removal that an individual may apply for if he or she is legally eligible. Most forms of relief are discretionary, which means the judge will engage in a two-step process to determine whether or not to grant relief. First, the judge will determine if the person meets the legal requirements in the Immigration and Nationality Act for the given type of relief requested. Second, the judge, based on his or her discretion, will decide whether or not the individual merits relief from removal depending on the positive and negative equities of the case.
The following is a list of the most common forms of relief from removal:
- Voluntary Departure,
- Cancellation of Removal,
- Adjustment of Status,
- Asylum, Withholding of Removal, or protection under the Convention against Torture, and
- Deferred Action.
Voluntary departure is when an individual in removal proceedings requests to leave voluntarily and pay for his or her own return trip instead of being removed (deported) by DHS. Voluntary departure has fewer negative consequences than removal, and may therefore be beneficial for certain individuals who plan to apply to return to the United States in the future. Depending on the stage of the proceedings, judges can allow up to 120 days before the departure deadline. Because voluntary departure is considered an immigration law benefit, there are specific requirements that an individual must meet in order to receive permission to leave voluntarily. Importantly, if an individual does not comply with the specific requirements in the judge's voluntary departure order, he or she will be subject to fines and other legal consequences.