Deportation & Removal Proceedings
Effective April 1, 1997, deportation and exclusion proceedings were replaced by removal proceedings. However, Immigration Judges continue to conduct
deportation and exclusion proceedings in certain cases that began before April 1, 1997. The procedures in deportation and exclusion proceedings are generally similar
to the procedures in removal proceedings. However, deportation and exclusion proceedings are significantly different from removal proceedings in areas such as
burden of proof, forms of relief available, and custody. Accordingly, parties in deportation and exclusion proceedings should carefully review the laws and
regulations pertaining to those proceedings.
Commencement. Deportation proceedings began when the former Immigration and Naturalization Service (INS) filed an Order to Show Cause with the Immigration
Court after serving it on the alien in person or by certified mail. Similarly, a removal proceeding begins when a Notice to Appear ("NTA") is served upon the alien.
Both the Oder to Show Cause and the NTA are written notices containing factual allegations and charge(s) of deportability.
Grounds of Deportability. The grounds for deportation that apply in deportation proceedings are listed in former INA § 241. In some cases, those grounds are
different from the grounds of deportability in removal proceedings.
Forms of relief. For the most part, the same forms of relief are available in deportation proceedings as in removal proceedings. However, there are important
differences. Parties in deportation proceedings should carefully review the relevant law and regulations.
Appeals. In most cases, an Immigration Judge’s decision in a deportation proceeding can be appealed to the Board of Immigration Appeals.
Exclusion Proceedings
Notice to Applicant Detained for Hearing. Exclusion proceedings began when the former INS filed a Notice to Applicant for Admission Detained for Hearing
before an Immigration Judge. See former INA § 242(b), 8 C.F.R. § 1240.30 et seq. The Notice is written and contains the charge(s) of excludability. Unlike the Order to
Show Cause, this Notice does not contain factual allegations.
Hearing notification. In exclusion proceedings, the alien must be given a reasonable opportunity to be present at the hearing. Note that, in exclusion proceedings,
notice to the alien is not governed by the same standards as in deportation proceedings . See Matter of Nafi, 19 I&N Dec. 430 (BIA 1987). Exclusion hearings are
closed to the public, unless the applicant requests that the public be allowed to attend.
Grounds of excludability. The grounds for exclusion are listed in the former INA § 212. In some cases, the grounds of excludability in exclusion proceedings are
different from the grounds of inadmissibility in removal proceedings. Compare former INA § 212 (prior to 1997) with current INA § 212.
Forms of relief. For the most part, the same forms of relief are available in exclusion proceedings as in removal proceedings. However, there are important
differences. Parties in exclusion proceedings should carefully review the relevant law and regulations.
Appeals. — An Immigration Judge’s decision in an exclusion proceeding can be appealed to the Board of Immigration Appeals.
Discretionary Relief
Once an alien in proceedings is found to be removable, s/he, if eligible, may request one or more types of discretionary relief. Following are some types of
discretionary relief that are available during a hearing; administrative relief and judicial review after a hearing is completed are discussed below. The alien has the
burden of proving that he or she is eligible for relief under the law, and usually that he or she deserves such relief as an exercise of discretion.
Voluntary Departure
Voluntary departure is the most common form of relief from removal and may be granted by Immigration Judges, as well as the Department of Homeland Security
("DHS"), which absorbed the functions of the former Immigration and Naturalization Service. Voluntary departure avoids the stigma of formal removal by allowing an
otherwise removable alien to depart the United States at his or her own personal expense and return to his or her home country, or another country if the individual
can secure an entry there. Immigration Judges will provide aliens information on the availability of this form of relief when taking pleadings. It is important to note
that aliens granted voluntary departure must depart within the time specified by the Immigration Judge. Although an Immigration Judge has the discretion to set a
shorter deadline, aliens granted voluntary departure prior to the completion of removal proceedings must depart within 120 days, and those granted such relief at the
conclusion of removal proceedings must depart within 60 days. In addition, in order to avoid being penalized for choosing to appeal a decision rather than depart, the
BIA usually will extend an earlier grant of voluntary departure for 30 days. As with other forms of discretionary relief, certain individuals will be found ineligible for
voluntary departure, and those granted voluntary departure who fail to depart are subject to fines and a 10-year period of ineligibility for other forms of relief.
Cancellation of Removal
This form of discretionary relief is available to qualifying lawful permanent residents and qualifying non-permanent residents. For lawful permanent residents,
cancellation of removal may be granted if the individual:
Cancellation of removal for non-permanent residents may be granted if the alien:
It is important to note that different standards are used in determining eligibility for victims of domestic violence.
Asylum
Under section 208(a) of the Immigration and Nationality Act, the Attorney General may, in his discretion, grant asylum to an alien who qualifies as a “refugee.”
Generally, this requires that the asylum applicant demonstrate an inability to return to his or her home country because of past persecution or a well-founded fear of
future persecution based upon his or her race, religion, nationality, membership in a particular social group, or political opinion. However, an alien may be ineligible
for asylum under certain circumstances, including having failed to file an asylum application within an alien’s first year of arrival in the United States, being convicted
of an aggravated felony, or having been found to be a danger to national security. Similar forms of relief are Withholding of Removal and applications under the
United Nations Convention Against Torture.
Adjustment of Status
This form of discretionary relief is available to change an alien’s status from a non-immigrant to a lawful permanent resident. Aliens who have been previously
admitted into the United States can apply to DHS for adjustment of status, while aliens in removal proceedings apply before an Immigration Judge. Several conditions
must be met, including that the alien is admissible for permanent residence and an immigrant visa is immediately available at the time of application. Aliens who
qualify for visas allowing an adjustment of status are often petitioned for by a spouse (or another family member) or an employer. Certain individuals, including
criminals and aliens who fail to appear for proceedings or fail to depart after a grant of voluntary departure, and those who were ordered removed may be ineligible
for adjustment of status.
Administrative and Judicial Relief
Motions to Reopen or Reconsider – An alien may move to reopen or to reconsider a previous decision by filing a timely motion with an Immigration Judge or the BIA.
The central purpose of a motion to reopen is to introduce new and additional evidence that is material and that was unavailable at the original hearing. A motion to
reconsider seeks a reexamination of the decision based on alleged errors of law and facts. Unless an exception applies, a party may file only one motion to reopen and
one motion to reconsider. With a few exceptions, a motion to reopen proceedings must be filed within 90 days of the final removal order, while a motion to reconsider
must be filed within 30 days of the date of the final order. The filing of such motions does not suspend the execution of the removal decision unless a stay is ordered
by the Immigration Judge, the BIA, DHS, or the alien seeks to reopen an in absentia order (a decision made when the alien was absent at the proceeding).
Stay of Removal
A stay of removal prevents DHS from executing an order of removal, deportation, or exclusion. Depending on the situation, a stay of removal may be automatic or
discretionary. An alien is entitled to an automatic stay of removal during the time allowed to file an appeal (unless a waiver of the right to appeal is filed), while an
appeal is pending before the BIA, or while a case is before the BIA by way of certification. Except in cases involving in absentia orders, filing a motion to reopen or
reconsider will not stay the execution of any decision made in a case. Similarly, filing a petition for review in Federal court also does not result in an automatic stay of a
removal order. Thus, a removal order can proceed unless the alien applies for and is granted a stay of execution as a discretionary form of relief by the BIA,
Immigration Judge, DHS, or a Federal court. Such a stay is temporary and is often coupled with a written motion to reopen or reconsider filed with the Immigration
Court, the BIA, or an appeal to a Federal Circuit Court.
Administrative Appeal
The BIA is the highest administrative body with the authority to interpret Federal immigration laws. The BIA has jurisdiction to hear appeals from decisions of
Immigration Judges and certain decisions of DHS. Either an alien or DHS may appeal a decision from the Immigration Judge. In deciding cases, the BIA can dismiss or
sustain the appeal, remand the case to the deciding Immigration Judge, or, in rare cases, refer the case to the Attorney General for a decision. A precedent decision by
the BIA is binding on DHS and Immigration Judges throughout the country unless the Attorney General modifies or overrules the decision. With respect to the filing
deadline, the appeal of an Immigration Judge’s decision must be received by 30 calendar days from the date it was issued by the court.
Judicial Review
The Immigration and Nationality Act confers Federal courts jurisdiction over certain decisions appealed from the BIA. However, subsequent laws have substantially
restricted judicial review of removal orders. An alien has 30 days from the date of a final removal decision to file a judicial appeal, which is generally filed with the
Court of Appeals. The procedures and applicability of judicial review in immigration cases are complex and governed by a number of court decisions and
interpretations that, in many circumstances, are not clearly resolved. For an understanding of how judicial review might apply in a specific case, qualified legal counsel
should be consulted.
If you're facing removal, deportation, or exclusion, you need qualified legal counsel. Let us help.
Effective April 1, 1997, deportation and exclusion proceedings were replaced by removal proceedings. However, Immigration Judges continue to conduct
deportation and exclusion proceedings in certain cases that began before April 1, 1997. The procedures in deportation and exclusion proceedings are generally similar
to the procedures in removal proceedings. However, deportation and exclusion proceedings are significantly different from removal proceedings in areas such as
burden of proof, forms of relief available, and custody. Accordingly, parties in deportation and exclusion proceedings should carefully review the laws and
regulations pertaining to those proceedings.
Commencement. Deportation proceedings began when the former Immigration and Naturalization Service (INS) filed an Order to Show Cause with the Immigration
Court after serving it on the alien in person or by certified mail. Similarly, a removal proceeding begins when a Notice to Appear ("NTA") is served upon the alien.
Both the Oder to Show Cause and the NTA are written notices containing factual allegations and charge(s) of deportability.
Grounds of Deportability. The grounds for deportation that apply in deportation proceedings are listed in former INA § 241. In some cases, those grounds are
different from the grounds of deportability in removal proceedings.
Forms of relief. For the most part, the same forms of relief are available in deportation proceedings as in removal proceedings. However, there are important
differences. Parties in deportation proceedings should carefully review the relevant law and regulations.
Appeals. In most cases, an Immigration Judge’s decision in a deportation proceeding can be appealed to the Board of Immigration Appeals.
Exclusion Proceedings
Notice to Applicant Detained for Hearing. Exclusion proceedings began when the former INS filed a Notice to Applicant for Admission Detained for Hearing
before an Immigration Judge. See former INA § 242(b), 8 C.F.R. § 1240.30 et seq. The Notice is written and contains the charge(s) of excludability. Unlike the Order to
Show Cause, this Notice does not contain factual allegations.
Hearing notification. In exclusion proceedings, the alien must be given a reasonable opportunity to be present at the hearing. Note that, in exclusion proceedings,
notice to the alien is not governed by the same standards as in deportation proceedings . See Matter of Nafi, 19 I&N Dec. 430 (BIA 1987). Exclusion hearings are
closed to the public, unless the applicant requests that the public be allowed to attend.
Grounds of excludability. The grounds for exclusion are listed in the former INA § 212. In some cases, the grounds of excludability in exclusion proceedings are
different from the grounds of inadmissibility in removal proceedings. Compare former INA § 212 (prior to 1997) with current INA § 212.
Forms of relief. For the most part, the same forms of relief are available in exclusion proceedings as in removal proceedings. However, there are important
differences. Parties in exclusion proceedings should carefully review the relevant law and regulations.
Appeals. — An Immigration Judge’s decision in an exclusion proceeding can be appealed to the Board of Immigration Appeals.
Discretionary Relief
Once an alien in proceedings is found to be removable, s/he, if eligible, may request one or more types of discretionary relief. Following are some types of
discretionary relief that are available during a hearing; administrative relief and judicial review after a hearing is completed are discussed below. The alien has the
burden of proving that he or she is eligible for relief under the law, and usually that he or she deserves such relief as an exercise of discretion.
Voluntary Departure
Voluntary departure is the most common form of relief from removal and may be granted by Immigration Judges, as well as the Department of Homeland Security
("DHS"), which absorbed the functions of the former Immigration and Naturalization Service. Voluntary departure avoids the stigma of formal removal by allowing an
otherwise removable alien to depart the United States at his or her own personal expense and return to his or her home country, or another country if the individual
can secure an entry there. Immigration Judges will provide aliens information on the availability of this form of relief when taking pleadings. It is important to note
that aliens granted voluntary departure must depart within the time specified by the Immigration Judge. Although an Immigration Judge has the discretion to set a
shorter deadline, aliens granted voluntary departure prior to the completion of removal proceedings must depart within 120 days, and those granted such relief at the
conclusion of removal proceedings must depart within 60 days. In addition, in order to avoid being penalized for choosing to appeal a decision rather than depart, the
BIA usually will extend an earlier grant of voluntary departure for 30 days. As with other forms of discretionary relief, certain individuals will be found ineligible for
voluntary departure, and those granted voluntary departure who fail to depart are subject to fines and a 10-year period of ineligibility for other forms of relief.
Cancellation of Removal
This form of discretionary relief is available to qualifying lawful permanent residents and qualifying non-permanent residents. For lawful permanent residents,
cancellation of removal may be granted if the individual:
- Has been a lawful permanent resident for at least 5 years;
- Has continuously resided in the United States for at least 7 years after having been lawfully admitted; and
- Has not been convicted of an “aggravated felony,” a term that is more broadly defined within immigration law than the application of the term “felony” in non-
immigration settings.
Cancellation of removal for non-permanent residents may be granted if the alien:
- Has been continuously present for at least 10 years;
- Has been a person of good moral character during that time;
- Has not been convicted of an offense that would make him or her removable; and
- Demonstrates that removal would result in exceptional and extremely unusual hardship to his or her immediate family members (limited to the alien’s spouse,
parent, or child) who are either U.S. citizens or lawful permanent residents.
It is important to note that different standards are used in determining eligibility for victims of domestic violence.
Asylum
Under section 208(a) of the Immigration and Nationality Act, the Attorney General may, in his discretion, grant asylum to an alien who qualifies as a “refugee.”
Generally, this requires that the asylum applicant demonstrate an inability to return to his or her home country because of past persecution or a well-founded fear of
future persecution based upon his or her race, religion, nationality, membership in a particular social group, or political opinion. However, an alien may be ineligible
for asylum under certain circumstances, including having failed to file an asylum application within an alien’s first year of arrival in the United States, being convicted
of an aggravated felony, or having been found to be a danger to national security. Similar forms of relief are Withholding of Removal and applications under the
United Nations Convention Against Torture.
Adjustment of Status
This form of discretionary relief is available to change an alien’s status from a non-immigrant to a lawful permanent resident. Aliens who have been previously
admitted into the United States can apply to DHS for adjustment of status, while aliens in removal proceedings apply before an Immigration Judge. Several conditions
must be met, including that the alien is admissible for permanent residence and an immigrant visa is immediately available at the time of application. Aliens who
qualify for visas allowing an adjustment of status are often petitioned for by a spouse (or another family member) or an employer. Certain individuals, including
criminals and aliens who fail to appear for proceedings or fail to depart after a grant of voluntary departure, and those who were ordered removed may be ineligible
for adjustment of status.
Administrative and Judicial Relief
Motions to Reopen or Reconsider – An alien may move to reopen or to reconsider a previous decision by filing a timely motion with an Immigration Judge or the BIA.
The central purpose of a motion to reopen is to introduce new and additional evidence that is material and that was unavailable at the original hearing. A motion to
reconsider seeks a reexamination of the decision based on alleged errors of law and facts. Unless an exception applies, a party may file only one motion to reopen and
one motion to reconsider. With a few exceptions, a motion to reopen proceedings must be filed within 90 days of the final removal order, while a motion to reconsider
must be filed within 30 days of the date of the final order. The filing of such motions does not suspend the execution of the removal decision unless a stay is ordered
by the Immigration Judge, the BIA, DHS, or the alien seeks to reopen an in absentia order (a decision made when the alien was absent at the proceeding).
Stay of Removal
A stay of removal prevents DHS from executing an order of removal, deportation, or exclusion. Depending on the situation, a stay of removal may be automatic or
discretionary. An alien is entitled to an automatic stay of removal during the time allowed to file an appeal (unless a waiver of the right to appeal is filed), while an
appeal is pending before the BIA, or while a case is before the BIA by way of certification. Except in cases involving in absentia orders, filing a motion to reopen or
reconsider will not stay the execution of any decision made in a case. Similarly, filing a petition for review in Federal court also does not result in an automatic stay of a
removal order. Thus, a removal order can proceed unless the alien applies for and is granted a stay of execution as a discretionary form of relief by the BIA,
Immigration Judge, DHS, or a Federal court. Such a stay is temporary and is often coupled with a written motion to reopen or reconsider filed with the Immigration
Court, the BIA, or an appeal to a Federal Circuit Court.
Administrative Appeal
The BIA is the highest administrative body with the authority to interpret Federal immigration laws. The BIA has jurisdiction to hear appeals from decisions of
Immigration Judges and certain decisions of DHS. Either an alien or DHS may appeal a decision from the Immigration Judge. In deciding cases, the BIA can dismiss or
sustain the appeal, remand the case to the deciding Immigration Judge, or, in rare cases, refer the case to the Attorney General for a decision. A precedent decision by
the BIA is binding on DHS and Immigration Judges throughout the country unless the Attorney General modifies or overrules the decision. With respect to the filing
deadline, the appeal of an Immigration Judge’s decision must be received by 30 calendar days from the date it was issued by the court.
Judicial Review
The Immigration and Nationality Act confers Federal courts jurisdiction over certain decisions appealed from the BIA. However, subsequent laws have substantially
restricted judicial review of removal orders. An alien has 30 days from the date of a final removal decision to file a judicial appeal, which is generally filed with the
Court of Appeals. The procedures and applicability of judicial review in immigration cases are complex and governed by a number of court decisions and
interpretations that, in many circumstances, are not clearly resolved. For an understanding of how judicial review might apply in a specific case, qualified legal counsel
should be consulted.
If you're facing removal, deportation, or exclusion, you need qualified legal counsel. Let us help.
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Attorney-Client relationship. Moreover, while some of the information found on this site is based on laws and court rulings, it is not intended to be legal advice and must
not be relied upon as legal advice on specific facts.
Attorney-Client relationship. Moreover, while some of the information found on this site is based on laws and court rulings, it is not intended to be legal advice and must
not be relied upon as legal advice on specific facts.
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