Immigration Court

Persons who are out of status are placed in “removal proceedings.” This is the term used in deportation proceedings. The Immigration Court is part of the Executive Office of Immigration Review within the Department of Justice. There are Immigration Courts in twenty-seven states, as well as one territory and one commonwealth. There are also Immigration Courts in certain Immigration Detention centers throughout the country where detained aliens appear.

Persons who have been served with a Notice to Appear are called Respondents. They must appear before the Immigration Court unless the Immigration Judge has excused their presence.

The Immigration Court typically requires a Master Calendar appearance in order to plead to the charges and to set filing deadlines and a trial date. The filings could be in person in court or at the clerk’s window, depending on how that Court’s calendar is organized. The Court will provide a qualified interpreter for those who do not speak and understand English for the merits hearing or final trial, but one is not always provided at the calendar hearings.
Persons who do not appear and are not excused are ordered removed in absentia. It is possible to reopen such cases but only under very limited circumstances. Procedures in Immigration Court are governed by the Immigration Court Practice Manual. Persons in Immigration Court must keep their biometrics (fingerprints) up to date, otherwise, the Court could order them removed for a de facto abandonment of their case. Biometrics expire every fifteen months and need to be redone.

Appeals

If the alien wins his or her case before the Immigration Judge and is granted relief, the DHS may appeal the decision to the Board of Immigration Appeals (BIA). If the alien loses his or her case, the alien may also appeal the decision. The notice of appeal must be filed within thirty days of the Immigration Judge’s decision otherwise the decision becomes final. There is a filing fee. Once the notice is filed the BIA will generate written transcripts of the proceedings. These are used to refer to any errors made by the Immigration Judge when the appeal brief is written. The opposing party may file a brief as well. The appeal process before the BIA may take from one to three years. During the time of the appeal before the BIA, the alien’s removal order is stayed so he or she cannot be removed in most cases.

If the appeal is denied by the BIA the alien may, in come instances, appeal to the Federal Circuit Court within the jurisdiction of where the Immigration Court was located. The Petition for Review must be filed within thirty days of the BIA decision. A Stay of removal should also be filed at this time because, otherwise, the alien could be removed. There is a filing fee before the Circuit Court. The record of proceedings is generated on which the appeal is based. The alien may be required to give oral arguments before a Circuit Court panel of judges in addition to the written arguments. This process can take several months to several years.

Detention Bonds

Many but not all detained aliens who were present in the United States at the time they were apprehended by Immigration and placed in Immigration Detention may request a bond before the Immigration Judge. In some instances, such as when the alien has committed certain crimes, there will be mandatory detention during the removal proceedings process. Aliens who surrender at the border cannot appear before the Immigration Judge for a bond. In that instance, they must petition DHS for release.

Detained aliens need to establish that they are neither a flight risk, a danger to the community, nor a threat to national security. The minimum bond amount is $1,500 but may be much higher depending on many factors such as the alien’s immigration history, his or her employment history, ties to the community, and eligibility for the relief requested. A bond determination made by the Immigration Judge may be appealed to the BIA. Once the bond is paid, DHS usually releases the alien by the next day.