By Bethany McAllister, Esq.
The Four Steps of Deportation
The Immigrant court process contains four steps which we will go into in more detail below: Notice to Appear, Notice of Hearing, Master Calendar Hearing, and an Individual Hearing.
The Immigration and Customs Enforcement (ICE) is the part of the government responsible for enforcing immigration laws. If ICE determines that a person has violated immigration law, it will initiate deportation proceedings. The very first thing that ICE will do is refer the case to the Office of the Chief Counsel. The Office of the Chief Counsel prosecutes immigration cases.
The Chief Counsel will issue a Notice to Appear to the alien. A Notice to Appear is the official document used to inform the alien that ICE intends to have him or her removed from the United States. The Notice to Appear contains the allegations used to establish that the alien is no longer eligible to stay in the United States. The Notice to Appear will state the date, place, and time of the hearing. Sometimes the Notice to Appear will indicate that the date, place, and time of the hearing will be set at a later date.
Second, the Immigration Court with jurisdiction over the case will issue a Notice of Hearing. If the Chief Counsel is situated in Detroit, Michigan, the Immigration Court in Detroit has jurisdiction over the case.
The Notice of Hearing informs both the alien and the Chief Counsel of the date, place, and time of the hearing. If an alien fails to appear for his/her hearing, the judge will enter an order of removal in absentia. In other words, the judge will order the alien deported because he failed to appear in court to defend himself. Once a person is served with the Notice to Appear he must notify the appropriate ICE office and Immigration Court of any change of address. It is very important to do this. Many aliens make the unfortunate mistake of relying on a friend to forward the mail.
If the alien misses a hearing because he fails to notify ICE of his new address, the alien will have to convince the judge to reopen his/her removal proceedings.
Third, the alien will attend the first hearing which is called a â€œMaster Calendar Hearing.â€ Master Calendar Hearings are very informal.
Typically, the courtrooms are filled with other people facing deportation.
Each one will appear before the judge for no more than ten minutes. The purpose of the Master Calendar Hearing is to officially inform the alien of the reasons why ICE wants to deport him. At this point the alien is called a â€œRespondentâ€ because he must respond to the Notice to Appear and convince the judge that he has a right to stay in the United States.
Every person in the United States has a right to a fair hearing. This means that each Respondent has a right to have a translator present as well as an attorney. If the Respondent does not have an attorney, he must go to the Master Calendar Hearing without an attorney.
The Respondent will have the opportunity to inform the judge that he needs more time to hire an attorney. The judge will grant a Respondent additional time to hire an attorney at his own expense. In other words, the U.S. government will not pay for the alienâ€™s legal representation.
The court must also give the Respondent a list of non-profit organizations that offer free legal services.
When the Respondent attends the next Master Calendar Hearing he must inform the court of his legal basis for remaining in the United States.
The Respondent or his attorney will submit all petitions and applications of relief to the judge. The attorney for the government sometimes opposes the submission.
Usually, the Respondentâ€™s attorney will convince the judge to accept the petition and/or application.
The judge will schedule an Individual Hearing date for the case, and will give the Respondent a formal warning of the consequences of his failure to appear at the Individual Hearing unless he can prove exceptional circumstances such as the death or serious illness of a close family member.
It is not uncommon for the Immigration Court to change the hearing date and time. Again, it is very important for Respondents to notify the court of any changes of address to prevent miscommunications.
If the Respondent decides that he/she does not want to continue his stay in the United States, his attorney may exercise the option to request voluntary departure.
Fourth, the Respondent will attend the Individual Hearing. The Individual Hearing is much more formal than the Master Calendar Hearing. The judge will ask the Respondent if he still wants his lawyer to continue representing him and whether he requires a translator.
Individual Hearings are very detailed. The judge will restate the charges against the Respondent and will review the exhibits that the attorneys have submitted in support of their cases. At this time, each attorney will have the opportunity to object to certain exhibits. The judge will then review the witness lists. After the judge reviews the exhibits and confirms that the witnesses will testify, she will ask the Respondentâ€™s attorney if the Respondent intends to make changes to the application.
For example, if the Respondent filed an application for asylum and withholding, he may need to change a small detail, such as the date a particular event occurred.
The judge will commence the trial after the Respondent has made the necessary changes. The Respondent will take the stand and the judge will instruct the Respondent to testify truthfully. The Respondentâ€™s attorney will ask him questions. The Respondent must answer truthfully and must only answer the questions asked of him. If the governmentâ€™s attorney believes that a particular question is inappropriate, he or she will make an objection. Only the judge has the authority to decide whether the question is appropriate.
After the Respondentâ€™s attorney has finished asking questions, the attorney for the government will ask questions about what the Respondent has already stated. The governmentâ€™s attorney will also ask questions to demonstrate that the Respondentâ€™s testimony conflicts with any exhibits or statements made in the petition or application. The Respondentâ€™s attorney will have the opportunity to ask more questions in order to clarify any confusing or inconsistent statements made by the Respondent.
If the Respondent has any witnesses to offer testimony, his /her attorney will call the witnesses to the stand. They are usually in the waiting room because they are not allowed to be present when the Respondent is on the stand.
After the Respondent and all witness have testified, the judge will give the attorneys the opportunity to make closing arguments. The judge will render his/her decision after both attorneys have concluded closing arguments. Sometimes the judge requires additional time to consider the testimony. In such cases, the judge will require the Respondent to return and hear the decision.
If the Respondent loses the case, he will decide whether or not to appeal the case to the Board of Immigration Appeals. Filing an appeal is a different process and most attorneys will require the Respondent to sign a new contract for legal services. Attorneys will require a new retainer fee as well. Going to immigration is very scary. An honest person with a good attorney will make the court process much easier.
This article does not constitute legal advice and those with immigration problems should seek out the services of a competent immigration specialist.
Ms. McAllister is an attorney in private practice in Dearborn, MI. Please direct immigration inquiries to Ms. McAllister by telephone at (866) 584-4411.