Removal Defense: Fighting Deportation in Immigration Court

What removal defense means

Removal is the legal term for deportation. When the Department of Homeland Security (DHS) believes a noncitizen is inadmissible or deportable, it can place that person in removal proceedings before an immigration judge of the Executive Office for Immigration Review (EOIR), part of the U.S. Department of Justice. Removal defense is the work of answering the government's case in that court: testing whether DHS can prove the charges, and asking the judge for any relief from removal the law allows. The proceeding itself is governed by section 240 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1229a, and the court's rules in 8 C.F.R. part 1240.

This guide explains the main steps of a case in immigration court, the documents you are likely to see, and the principal forms of relief. It is general information, not legal advice: whether any rule or form of relief fits a particular person depends on their full immigration and criminal history.

How a removal case starts: the Notice to Appear

A removal case begins when DHS serves a Notice to Appear (Form I-862, the "NTA") and files it with an immigration court. Under INA § 239, 8 U.S.C. § 1229(a), the NTA must state the nature of the proceedings, the legal authority for them, the acts or conduct alleged to violate the law, the charges and the statutes allegedly violated, the right to be represented by counsel, the duty to give the government an address and telephone number and report every change, and the consequences of failing to appear.

Read an NTA in two parts:

• Factual allegations — numbered statements such as country of citizenship, date and manner of entry, or a conviction.
• Charges — the section of the INA under which DHS says the person is removable, for example as someone present without admission or as a lawful permanent resident deportable for a criminal offense.

To give the person time to find a lawyer, the first hearing may not be scheduled earlier than 10 days after the NTA is served unless the person agrees to an earlier date (8 U.S.C. § 1229(b)(1)). You can check the court, the next hearing date and the judge's decision in EOIR's Automated Case Information portal using the A-number printed on the NTA.

Keep your address current with the court

Hearing notices are mailed to the address the court has on file. Within five days of any change of address, the regulations require written notice to the immigration court on Form EOIR-33 (8 C.F.R. § 1003.15(d)(2)). A person who misses a hearing after proper notice can be ordered removed in absentia — without being present — if DHS proves the case (8 U.S.C. § 1229a(b)(5)).

The master calendar hearing

The first appearance is usually a short master calendar hearing, where the judge handles many cases in one session. Under 8 C.F.R. § 1240.10, the judge must, among other things:

• explain the right to be represented by a lawyer at no expense to the government and ask whether the person wants representation;
• confirm the person received the list of free (pro bono) legal service providers for that court;
• read the factual allegations and charges and explain them in plain language.

The person, usually through counsel, then pleads to the NTA: admitting or denying each allegation and each charge (8 C.F.R. § 1240.10(c)). If allegations are denied, DHS must prove them. For a person who was admitted to the United States, DHS must establish deportability by clear and convincing evidence; a person charged as an applicant for admission carries the burden of showing they are entitled to be admitted or are lawfully present after a prior admission (8 U.S.C. § 1229a(c)(2)–(3)). At the master calendar the person also identifies the relief they will seek, and the judge sets deadlines to file applications and evidence.

EOIR's procedures for master and individual hearings, filing deadlines and courtroom practice are in the EOIR Policy Manual. Most filings can also be made electronically through the EOIR Courts & Appeals System; EOIR's Immigration Court Online Resource explains the steps for people without a lawyer.

The individual (merits) hearing

If the person seeks relief, the case is set for an individual hearing, sometimes called the merits hearing. It is the trial: the person testifies under oath, witnesses may testify, the DHS attorney cross-examines, and the judge weighs the documents in the record. The law guarantees a reasonable opportunity to examine the evidence against the person, to present evidence and to cross-examine the government's witnesses (8 U.S.C. § 1229a(b)(4)). The person applying for relief must prove eligibility, and for discretionary relief must also show the judge should grant it as a matter of discretion (8 U.S.C. § 1229a(c)(4)). The judge then decides, orally or in writing, whether the person is removable and whether relief is granted.

Main forms of relief from removal

An immigration judge can consider applications for relief during the hearing (8 C.F.R. § 1240.11). The most common are:

• Cancellation of removal (INA § 240A, 8 U.S.C. § 1229b). A lawful permanent resident may qualify after five years as a permanent resident and seven years of continuous residence after admission, if not convicted of an aggravated felony. A non-permanent resident must show ten years of continuous physical presence, good moral character, no disqualifying convictions, and that removal would cause exceptional and extremely unusual hardship to a U.S.-citizen or permanent-resident spouse, parent or child. Non-permanent-resident grants are capped at 4,000 per fiscal year. See our cancellation of removal guide.
• Asylum, withholding of removal and Convention Against Torture protection. Asylum (8 U.S.C. § 1158) generally must be requested within one year of arrival, subject to exceptions. Withholding of removal (8 U.S.C. § 1231(b)(3)) and CAT protection (8 C.F.R. §§ 1208.16–1208.18) have no one-year deadline but carry a higher standard of proof. In court these are requested on Form I-589. See our asylum and withholding of removal pages.
• Adjustment of status. A person with an approved or immediately available immigrant petition — for example through a U.S.-citizen spouse — may be able to apply for a green card before the judge if they meet 8 U.S.C. § 1255. See adjustment of status.
• Voluntary departure (INA § 240B, 8 U.S.C. § 1229c). Leaving at one's own expense by a deadline instead of receiving a removal order. Requested early in the case it can allow up to 120 days; granted at the end of proceedings it allows up to 60 days and requires, among other things, one year of physical presence before the NTA and five years of good moral character.

Some people also ask the court to terminate proceedings, for example when a charge is legally defective. What is available depends heavily on criminal history, prior orders and the date and manner of entry, which is why the details of every conviction and entry matter.

Detention and bond

People in removal proceedings may be held in Immigration and Customs Enforcement (ICE) custody. For some detainees, an immigration judge can hold a bond hearing and set a bond of at least $1,500 (8 U.S.C. § 1226(a); 8 C.F.R. § 1003.19); others are subject to mandatory detention under the statute. A detained case moves on a faster docket. See our bond hearings guide.

After the judge decides: appeals, motions and federal court

• Appeal to the Board of Immigration Appeals (BIA). Either side may appeal on Form EOIR-26, which must be received by the Board within 30 calendar days of the judge's decision (8 C.F.R. § 1003.38(b)). See our BIA guide.
• Motions to reopen or reconsider. A motion to reopen, based on new facts, generally must be filed within 90 days of the final order, and only one is allowed; a motion to reconsider, arguing a legal or factual error, within 30 days (8 U.S.C. § 1229a(c)(6)–(7); 8 C.F.R. § 1003.23). An in absentia order may be reopened within 180 days for exceptional circumstances, or at any time if the person did not receive proper notice (8 U.S.C. § 1229a(b)(5)(C)). There are exceptions, such as asylum claims based on changed country conditions. See our motions to reopen guide.
• Petition for review. A final removal order can be challenged in the federal court of appeals by a petition for review filed within 30 days of the final order (8 U.S.C. § 1252(b)(1)).

Getting representation

There is no government-appointed lawyer in removal proceedings for most adults: the right is to counsel "at no expense to the Government" (8 U.S.C. § 1229a(b)(4)(A)). A lawyer files Form EOIR-28 to appear for the person in immigration court. EOIR publishes a list of pro bono legal service providers for each court. To find where a case is heard, see our directory of all 77 immigration courts.

To have a former immigration judge defend your own case in court, see our deportation defense lawyer page.