-Immigration Court Explained: Part 1- The Court and the NTA
By Farhad Sethna, Attorney Copyright 2007, all rights reserved
This is part 1 of a series of articles on Immigration Court processes on my website. I am going to try to explain some of the workings of immigration court, the mysteries of the “removal” process and the potential for relief from removal (a fancy term for defending a deportation case).
Let’s start by understanding what “Immigration Court” is.
Immigration courts are administrative courts. That is, they are manned by judges who are actually also employees of the United States Department of Justice (as opposed to US Federal Court judges who are employees of the judicial branch under Article 3 of the U.S Constitution). The immigration courts are part of the “executive office for immigration review” and the EOIR is a division of the United States Department of Justice. Decisions of immigration judges on the EOIR can be appealed to the Board of Immigration Appeals. There is only one Board of Immigration Appeals for the entire country, and it is headquartered in Falls Church, Virginia.
As of the time of this writing, there were approximately 220 immigration judges ( IJs) stationed at various courts throughout the country. The EOIR courts and their immigration judges are primarily in large metropolitan urban areas. Some larger cities have several judges while smaller cities may have just one or two. In addition, there are also EOIR courts at various federal detention centers, or state or county jails where large numbers of immigrants are detained. For example, there is an EOIR court at the County Jail in York, Pennsylvania and EOIR courts at ICE Detention Centers in Florence, Arizona, Batavia, New York and Oakdale, Louisiana. These courts are all at detention facilities in order to speed up the processing and removal of detained aliens.
So how exactly does an alien get placed in the immigration court system?
There are several ways in which an immigrant may face removal proceedings. First of all, the alien may have committed a crime. If that crime, is a removable offense as defined under the immigration statutes, it will place the alien in “removal proceedings”. (Please be aware that “removal” is a new name for “deportation and exclusion” that was created by the Immigration Reform Act of 1996. For more on that Act and the extremely harsh laws that were passed in 1996, please see the other articles on my website). Once an alien is convicted of a crime in local, state, or federal court, the court usually notifies the DHS (Department of Homeland Security) of the alien’s conviction. That triggers the issuance of an NTA (“ Notice to Appear”-see below) and sometimes the alien’s arrest.
The second way in which an alien may be placed in removal proceedings is that his or her application for benefits through the USCIS (United States Citizenship and Immigration Services) may be denied. For example, an alien may file for “adjustment of status” (“ Green Card”) through his or her United States citizen spouse. Suppose halfway through the marriage, the spouses have a problem and get divorced. Then the US citizen spouse withdraws his or her support for the application. The alien spouse, having no qualifying relationship would obviously have the application for Green Card denied. Thereupon, the alien may be “out of status” and will then be placed in removal proceedings to remove him or her from the United States.
Another way that aliens find themselves in immigration court is related in some fashion to the earlier paragraph. The alien may enter the United States legally, but then may overstay his or her visa or fall out of status, attempt to change statuses illegally, work illegally, or otherwise violate immigration laws. This will also place the alien in removal proceedings.
Asylum seekers also face removal charges in immigration court if their asylum application is denied. In such a case, the asylum applicant would have filed his or her application for asylum with the USCIS, and that application would have been denied. Thereupon, the USCIS would place the applicant in removal proceedings.
Referrals from the naturalization process: Many aliens file for naturalization, even though they may have a criminal record or some other ineligibility . They do so in most cases without seeking the advice of a competent immigration attorney. Even though they may have had a criminal violation many years in the past and even possibly if that violation has bee expunged, there is still an immigration consequence of that criminal violation. What this means is that the USCIS not only denies the naturalization application on the basis of the prior criminal conviction, but then also on top of that places the applicant in removal proceedings! Therefore not only is the application denied, now the applicant faces the very real risk of being removed from the USA.
Finally, immigration court proceedings include aliens who have entered the United States illegally, or without inspection and who are subsequently apprehended by the USICE or federal, state or local law enforcement agencies.
CHARGES IN IMMIGRATION COURT
So now that you understand how a case can end up in immigration court, what happens once the case is on the immigration court docket? Well first, any alien whose case is placed before the EOIR must be served with a “Notice to Appear”. The NTA as it is called in short form, is essentially a charging document which makes certain allegations about the alien and ends with a series of paragraphs that attempt to conclude why the alien should be removed from the United States. Therefore, in essence, the NTA has two main parts. The first part is a series of assertions about the alien. The second part is the various allegations under the law that would make the alien removable.
As an example, the first part of the NTA would have paragraphs which read as follows:
• You are a citizen of country “X”
• You were born on “such and such date” at “ place”
• You entered the United States on “X” date at “Y” place
• You entered the United States as a immigrant/non immigrant; example: “non immigrant B-1 business visitor” or
• You entered the United States without inspection at an unknown place on an unknown date
• Your stay in the United States was granted until “such and such date”
• You remained in the United States beyond that date without extension or authorization of the USCIS or
• On “X” date you were convicted of the crime of “Y” for which a sentence of one year or more may be imposed.
That’s an example of the first part of the NTA. The second part, continuing with that example might read as follows:
“As a result of your overstay in the United States, you are removable from the United States under § “XYZ” of the Immigration and Nationality Act, 8 U.S.C. §1101 et seq, as amended”.
There-you have it. Most NTAs are fairly straightforward like the one I have described above. However, when cases get complicated or there are issues involving criminal charges, various counts and reasons for removal, then the NTA can get fairly long and complicated as well, listing multiple charges and multiple counts for removal.
Do I need an Immigration Attorney to defend my removal case?
I am going to answer that question with a well known quotation “ The man who defends himself has a fool for an attorney”.
Removal proceedings are complex issues. Your stay in the USA hangs in the balance. Everything that you have worked for, lived for in the United States- perhaps with a spouse and children and a home a job or a business, are at stake. This is a serious matter, Unless you have nothing to lose you really should consider hiring a qualified and competent attorney to defend you in removal proceedings. This is not my “plug” for hiring an attorney. Rather, this is my honest observation based on many years of immigration court practice. Notice that I also said “qualified and competent” attorney. This is very important. Meet and discuss your case with any prospective attorney or attorneys, get a second opinion or even a third opinion if necessary, and then retain the attorney who you think will best serve you. This is not a time to be fainthearted. You need dedicated, competent, strong, and honest representation.
Now that you find yourself having been served with an NTA and are scheduled for an Immigration Court hearing, what happens next?
We will cover that item in the next articles in this series! Stay tuned!