Navigating Immigration Court as an Undocumented Immigrant
Here’s what you need to know about the U.S. immigration court system before attending your hearings
Navigating Immigration Court as an Undocumented Immigrant
The U.S. immigration court system is complex and can be difficult to navigate without legal representation. If you’ve been issued a notice to appear in immigration court, or you’re wondering how to prepare for an upcoming hearing, we’ve put together a guide on the U.S. immigration court system.
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How the Immigration Court System Works
The U.S. government body in charge of the U.S. immigration court system is the Executive Office for Immigration Review (EOIR). Under the EOIR, there are approximately 63 immigration courts located in the U.S., with around 400 immigration judges total. Immigration judges are appointed by the U.S. Department of Justice (DOJ) and opposing attorneys in all immigration courts represent the U.S. government. Unlike criminal and civil court proceedings in the U.S., immigration cases are not decided by a jury, but solely by an immigration judge.
Cases heard at immigration court typically involve detained immigrants, immigrants accused of crimes, or asylum seekers. Foreign-born individuals whom the U.S. government has charged with violating immigration law must appear before immigration court. During immigration court hearings, immigration judges determine whether the immigrant in question should be removed from the U.S. or permitted to remain in the country.
Understanding Deportation and Removal
“Deportation” and “removal” are two commonly used phrases in U.S. immigration law and the immigration court system. According to U.S. government guidelines, deportation is the “formal removal of a foreign national from the U.S. for violating an immigration law.” The U.S. government may deport immigrants who commit certain crimes, are deemed a threat to public safety, or violate the requirements of their visa. For immigration court cases, deportation requires an official order of removal by an immigration judge. The legal term for deportation is “removal” although “deportation” and “removal” are often used interchangeably. Deportation proceedings and removal proceedings refer to the same hearings under the immigration court system.
If you’d like to discuss all of the options available in your specific situation and get personalized legal advice on the best way forward, it is generally a good idea to consult with an immigration legal professional. Boundless’ Ask My Attorney (AMA) program can help connect you with an experienced independent immigration attorney instantly and provide you with unlimited legal consultations. Check your eligibility and learn more about the program here.
Immigration Court Hearing Process
Although each case in the immigration court system is unique, here are the general steps most immigrants will undergo once they’ve been summoned to appear at immigration court:
Step 1: Receiving a Notice to Appear (NTA)
Immigration court proceedings typically begin with the issuance of a Notice To Appear (NTA), otherwise known as Form I-862. An NTA, issued by the Department of Homeland Security (DHS), alerts a foreign national that removal proceedings have been brought against them and lists the reasons why they are considered deportable, or “charges”. Most NTAs also include the date, time, and location of your first court hearing. If you receive an NTA, you are required to attend formal hearings at an immigration court on the date and time specified on your NTA, and address the charges against you before a judge.
Step 2: Attending a Master Hearing
Your NTA will have specific details of the date, time, and location of your first court hearing, which will typically be a preliminary hearing, known as a Master Calendar Hearings (MCH). The MCH is the first hearing in the immigration court process, where many immigrants will appear before the same judge at the same time. When it is your turn to have your case heard before the judge, they will ask you basic questions about where you currently live, your immigration background, and what petition you plan to file in order to remain in the U.S. At the end of the hearing, the immigration judge assigned to your case will provide you with a new hearing notice that contains the date and time of your next hearing.
Step 3: Attending Your Individual Hearing
The next hearing an individual will typically attend during the immigration court process is the Merits Hearing, otherwise known as an individual hearing. If you are eligible to file an application to stay in the U.S., you will be scheduled for this individual hearing that is usually conducted by the same immigration judge as your MCH. At your individual hearing, you are given the opportunity to present evidence for your case and testify that you are eligible for immigration benefits and should be allowed to remain in the U.S. permanently. Your application for immigration benefits could be based on a family relationship with a U.S. citizen or legal permanent resident, or fear of harm in your home country (for those seeking asylum). Here are some common petitions/applications that immigrants may file as defenses during removal proceedings:
At your individual hearing, the immigration judge assigned to you will make a determination on your case based on your petition filing and the evidence presented. If you can prove you meet the eligibility requirements of your petition or application, the judge may rule in your favor and protect you from deportation. In certain situations, an immigrant may even be granted permanent resident status upon conclusion of their individual hearing. It is always at the discretion of the immigration judge to either approve or deny your case.
Step 4: Filing an Appeal
If the immigration judge rules against you at the individual hearing, you may be able to file an appeal of the decisions through the Board of Immigration Appeals (BIA). The appeal process typically involves the review of your case by one or more immigration judges, who will either overturn or uphold the decision made by the original judge. If you lose your appeal at the BIA stage, it may be possible to escalate your case further, by filing a petition for review in the federal Court of Appeals. A petition for review with the Court of Appeals must be filed within 30 days of the BIA decision. Unlike BIA appeals, there is no deportation protection offered during the federal appeals process – individuals who choose to go his route are at risk of deportation for the duration of the federal appeals process.
Overall, the appeals process in immigration court is complex and can be difficult to navigate. It’s best to speak with an immigration attorney for support and legal representation before and during this process.
Frequently Asked Questions
Under U.S. law, all individuals are protected by the constitutional requirement of due process. The 14th Amendment of the U.S. constitution guarantees due process to all “persons” in the U.S., not just citizens. In the immigration court system, the 14th Amendment means that all immigrants, even those who are undocumented, have a protected right to have their cases heard before a judge.
Because immigration court hearings are civil proceedings, immigrants have the right to obtain their own legal counsel, but are not provided representation free of charge, as is customary in criminal court hearings. Many non-profit organizations provide free or low-cost legal support for immigrants facing removal proceedings. The DOJ also has an online directory where immigrants can search for pro bono legal service providers in their area.
Some immigrants convicted of criminal offenses may be subject to mandatory detention during their immigration hearings. In general, individuals facing detention may have more complex cases and require greater legal assistance to help them navigate the U.S. immigration system.
Asylum seekers who arrive at a U.S. port of entry and are released at the border (not detained) are generally issued an NTA and can remain in the U.S. while they await their court date. It’s important to note that asylum seekers are not able to work without proper work authorization or travel in and out of the U.S. before their immigration court hearings. If your asylum petition has been pending for more than 150 days, you may be eligible to apply for an Employment Authorization Document (EAD) at that time.
Unfortunately, the U.S. immigration court system has struggled with a massive accumulation of pending cases for decades, and the current backlog stands at over 1.8 million, the largest in the system’s history. Immigration courts are understaffed and receive less federal funding than other government agencies, leading to long processing times. For some immigrants, it can take years to receive a date for a first hearing.
Due to the backlog and shifting immigration policies, it is difficult to estimate when immigrants will receive their court hearings. Each case varies, and it’s important to enlist legal support for any questions on navigating your court date and your rights and responsibilities while your case is pending.
It’s imperative that individuals attend every immigration court hearing that is scheduled for their case. If you miss one of your hearings, the immigration judge assigned to your case may issue a removal order against you in absentia (without your presence in court). If you have a removal order, government officials have the discretion to arrest, detain, and deport you.
If you miss your hearing, you can call the EOIR’s Immigration Case Information Hotline (1-800-898-7180) to check if the immigration judge assigned to your case either rescheduled your hearing for a different date or issued you a removal order. If you are issued a removal order, you may be able to reopen your case in immigration court by filing a Motion to Reopen your removal proceedings. Filing this motion is typically done with the help of an immigration attorney, and you may be eligible to reopen your case if you can prove one of the following in your petition:
- You did not receive an NTA or written notice about the date or time of your hearing (for example, the notice was sent to an incorrect address)
- You were unable to attend your hearing due to “exceptional circumstances,” such as a serious illness or family emergency
It is always at the discretion of the immigration judge in question to approve your Motion to Reopen. Missing a court hearing or receiving a removal order is a complex and urgent issue that should be addressed as quickly as possible with legal assistance.