Removal Proceedings in Immigration Court

INA § 240: the law that sets up removal proceedings

Removal proceedings are often called "240 proceedings" after the section of the Immigration and Nationality Act that creates them: INA § 240, 8 U.S.C. § 1229a. Under § 240(a)(1), "an immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien," and at the end the judge decides whether the person is removable (§ 240(c)(1)(A)) and whether they qualify for relief such as asylum or cancellation of removal. Unless the Act specifies otherwise, this is "the sole and exclusive procedure" for deciding whether a person may be admitted or, if admitted, removed (§ 240(a)(3)). The case usually begins when DHS files a Notice to Appear, as the next section explains.

Section 240(b)(4) gives the person three core rights: to be represented by a lawyer of their choice "at no expense to the Government"; a reasonable opportunity to examine the evidence against them and present their own; and to cross-examine government witnesses. The statute also sets who must prove what:

• Admitted person: DHS must prove deportability "by clear and convincing evidence" (§ 240(c)(3)(A)).
• Applicant for admission: the person must show they are "clearly and beyond doubt entitled to be admitted" (§ 240(c)(2)(A)).
• Relief: the applicant must prove eligibility and, for discretionary relief, that they merit it (§ 240(c)(4)(A)).

The judge's decision can be appealed to the Board of Immigration Appeals (§ 240(c)(5); 8 C.F.R. § 1003.1(b)(3)).

How the case starts: the Notice to Appear is filed

A removal case exists once DHS files a charging document — the Notice to Appear (Form I-862, the "NTA") — with an immigration court. The regulation is direct: "Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court" (8 C.F.R. § 1003.14(a); 8 C.F.R. § 1239.1). Being handed an NTA by an officer is therefore not quite the same as being in court: until the NTA is filed, the court has no case.

Under INA § 239, 8 U.S.C. § 1229(a)(1), the NTA is served in person, or by mail if personal service is not practicable, and must state the nature of the proceedings, the legal authority, the acts alleged, the charges, the right to a lawyer, the duty to report an address and phone number, and "the time and place at which the proceedings will be held," together with the consequences of not appearing. Our Notice to Appear hub and our article on how to read an NTA explain the allegations and charges line by line.

• Ten days to find a lawyer. The first hearing may not be set "earlier than 10 days after the service of the notice to appear, unless the alien requests in writing an earlier hearing date" (8 U.S.C. § 1229(b)(1)). After that period the case can go forward even if the person has not found counsel (§ 1229(b)(3)).
• Five days to report an address. If the NTA has no address or a wrong one, the person must give the court a written address and phone number within five days of service, and must report every later move within five days on Form EOIR-33 (8 C.F.R. § 1003.15(d)). Hearing notices go to the last address given; this is the single most important deadline in the whole case, for the reason explained below.
• Checking the case. EOIR's Automated Case Information portal shows the court, the next hearing and any decision, using the A-number printed on the NTA. Our directory of all 77 immigration courts gives each court's address.

When the NTA does not give the date, the court schedules the first hearing and mails the notice itself (8 C.F.R. § 1003.18(b)); any later change of date comes the same way (8 U.S.C. § 1229(a)(2)).

An NTA without a date: Pereira, Niz-Chavez and Campos-Chaves

For years DHS served NTAs that said the hearing would be held on a date "to be set." The Supreme Court has addressed those notices three times, and the rulings matter at different points of the timeline:

• Pereira v. Sessions, 585 U.S. 198 (2018) (June 21, 2018): a notice that does not specify the time and place of the hearing is not a "notice to appear" under § 1229(a) and does not trigger the "stop-time" rule that ends the years counted toward cancellation of removal.
• Niz-Chavez v. Garland, 593 U.S. 155 (2021) (April 29, 2021): the notice that stops the clock must be "a single document" containing all the required information. A later hearing notice does not complete a defective NTA for stop-time purposes. The effect on the 10-year and 7-year requirements is covered in our cancellation of removal guide.
• Campos-Chaves v. Garland, 602 U.S. 447 (2024) (June 14, 2024): a person who received a proper notice of the specific hearing they missed cannot have an in absentia order rescinded merely because the original NTA lacked the date. The defective NTA helps with stop-time; it does not excuse a missed hearing that was properly noticed.

An objection to a defective NTA in the case itself must be made early. The BIA held in Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022) that the time-and-place requirement is a claim-processing rule, not a limit on the court's jurisdiction, and that an objection "will generally be considered timely if it is raised prior to the closing of pleadings before the Immigration Judge." Raised later, it is usually lost. A timely objection does not end the case for good; DHS can generally cure the defect.

Missing a hearing: in absentia orders and how they are rescinded

A person who does not attend a hearing after written notice "shall be ordered removed in absentia" if DHS establishes "by clear, unequivocal, and convincing evidence" that the notice was provided and that the person is removable (INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A); 8 C.F.R. § 1003.26). Notice to the most recent address the person gave is enough, and no notice is required at all if the person never gave an address (§ 1229a(b)(5)(B)). This is why the five-day address rule matters so much. On September 3, 2026 the BIA held in Matter of Diji, 30 I&N Dec. 1 (BIA 2026) that the "most recent address" includes one the person gave before the NTA was even issued.

An in absentia order can be undone only by a motion to reopen, on one of three grounds (§ 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii)):

1. Exceptional circumstances, in a motion filed within 180 days of the order. The statute defines these as circumstances beyond the person's control "such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances" (§ 1229a(e)(1)).
2. No proper notice of the hearing, in a motion filed at any time.
3. Federal or state custody at the time of the hearing, through no fault of the person, also at any time.

Filing the motion automatically stays removal until the judge decides it, and only one such motion is allowed (§ 1003.23(b)(4)(ii)). There is no appeal to the BIA from an in absentia order itself (8 C.F.R. § 1240.15); the route is the motion to reopen, and then an appeal of its denial. A person who was warned orally, in a language they understand, of the hearing and of the consequences of missing it, and who is then ordered removed in absentia, is barred for 10 years from cancellation of removal, voluntary departure, adjustment of status, change of status and registry (§ 1229a(b)(7)). The claim must be proven: in Matter of K-K-U-J-, 30 I&N Dec. 81 (BIA 2026) (August 27, 2026) the BIA reversed a rescission because the record did not support the person's claim that someone had misled him into believing he need not appear. Our motions to reopen guide covers how these motions are prepared.

The master calendar hearing: pleadings and the plan for the case

The first appearance is a master calendar hearing, a short session in which the judge handles many cases. It may be held in person, by video, or by telephone; a video hearing is allowed to the same extent as an in-person one (INA § 240(b)(2), § 1229a(b)(2); 8 C.F.R. § 1003.25(c)). Under 8 C.F.R. § 1240.10(a) the judge must:

• advise the person of the right to representation "at no expense to the government" and require them to say "then and there" whether they want it — if they do, the judge usually resets the hearing so they can find a lawyer;
• confirm they received the list of free legal service providers and a copy of their appeal rights;
• explain the right to examine and object to evidence, present evidence and cross-examine witnesses; and
• read the factual allegations and charges "in non-technical language" and enter the NTA as an exhibit.

Pleading. The person then admits or denies each factual allegation and says whether they concede removability on each charge (§ 1240.10(c)). Denied allegations must be proven by DHS. The judge may not accept an admission of removability from an unrepresented person who appears incompetent or who is under 18 and not accompanied by a parent, guardian or other adult. Pleadings are also the moment for an objection to a defective NTA (Fernandes, above).

Country of removal. The person is asked to designate a country of removal, and the judge names alternatives (§ 1240.10(f)).

Relief and the calendar. The person, usually through counsel, tells the judge which applications they will file — for example asylum, cancellation of removal or adjustment of status — and the judge sets filing deadlines and an individual hearing date. If the person expresses fear of returning, the judge must advise them that they may apply for asylum and withholding of removal and give them the forms (8 C.F.R. § 1240.11(c)(1)). A case may take several master calendar hearings before it is ready for trial.

Early voluntary departure. A person who wants to leave rather than contest the case must ask for pre-conclusion voluntary departure "prior to or at the master calendar hearing at which the case is initially calendared for a merits hearing," conceding removability, withdrawing other applications and waiving appeal (8 C.F.R. § 1240.26(b)(1)(i)). That window closes early; see the decision section below.

Between hearings: filings, continuances and pauses

Most of the work of a removal case happens between hearings. Applications, evidence, witness lists and briefs are filed by the deadlines the judge sets and the rules in the EOIR Policy Manual; a document filed late may be refused. Lawyers and accredited representatives file through EOIR's Courts & Appeals System (ECAS) in eligible cases, and each filing must be served on the DHS attorney.

• Continuances. A judge "may grant a motion for continuance for good cause shown" (8 C.F.R. § 1003.29). The Attorney General's Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018) sets the test for continuances sought to pursue relief elsewhere, and the BIA has applied it strictly: Matter of J-A-F-S-, 29 I&N Dec. 195 (BIA 2025) held that a continuance should not be granted for relief that is speculative. A request should explain what is pending, when it is likely to be decided and why it would change the outcome.
• Administrative closure. Taking a case off the active calendar while something else is decided used to be common. On June 22, 2026 a federal court in Texas v. U.S. Department of Justice (N.D. Tex. No. 7:26-cv-00070) vacated EOIR's 2024 rule that authorized it; the eCFR still prints that text in 8 C.F.R. § 1003.18(c), so the printed regulation alone can mislead.
• Presence at hearings. For good cause a judge may waive the person's presence at a hearing if they are represented (8 C.F.R. § 1003.25(a)). Without such a waiver, the person must attend every hearing; missing one leads to the in absentia rules above.
• Detained cases follow the same steps on a faster docket, and custody is decided separately; see our bond hearings guide.

The individual (merits) hearing

The individual hearing is the trial. Testimony is taken under oath, witnesses may be called, the DHS attorney cross-examines, and "a complete record shall be kept" (INA § 240(b)(4), 8 U.S.C. § 1229a(b)(4)). An evidentiary merits hearing may be held by telephone only with the person's consent after they are told they may appear in person or by video (§ 1229a(b)(2)(B); § 1003.25(c)). The judge decides "based only on the evidence produced at the hearing" (§ 1229a(c)(1)(A)).

Who must prove what depends on how the person entered (§ 1229a(c)(2)–(4)):

• A person who was admitted (for example with a visa or a green card): DHS must prove deportability "by clear and convincing evidence," and the decision must rest on "reasonable, substantial, and probative evidence."
• An applicant for admission (including a person who entered without inspection): the person must show they are "clearly and beyond doubt entitled to be admitted," or prove by clear and convincing evidence that they are lawfully present after a prior admission.
• Relief: the person applying must prove eligibility and, for discretionary relief, that the judge should grant it as a matter of discretion; the statute also addresses corroboration and credibility.

Which charges DHS can bring against a person already here is explained in our article on grounds of deportability.

The judge's decision, voluntary departure and when an order becomes final

The decision "may be oral or written"; it must find whether the person is inadmissible or deportable, give reasons for granting or denying relief, and end with an order (8 C.F.R. § 1240.12(a)). An oral decision is stated in the person's presence; a written one is served by mail or electronically, and service by mail is complete on mailing (8 C.F.R. § 1240.13). The judge must advise of the right to appeal (§ 1229a(c)(5)).

Finality. The judge's decision "becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken whichever occurs first" (8 C.F.R. § 1003.39). Waiving appeal at the end of the hearing therefore makes a removal order final that day.

Voluntary departure (INA § 240B, 8 U.S.C. § 1229c) lets a person leave at their own expense instead of being removed. It comes in two forms:

• Before the case ends: up to 120 days, not available to a person deportable for an aggravated felony or on terrorism grounds, nor to an arriving alien (§ 1229c(a)). The judge cannot grant it more than 30 days after the master calendar hearing at which the case was first set for a merits hearing, unless DHS agrees (§ 1240.26(b)(1)(ii), (b)(2)).
• At the end of the case: up to 60 days, only if the person was physically present for at least one year before the NTA was served, has had good moral character for five years, is not deportable for an aggravated felony or on security grounds, and shows by clear and convincing evidence the means and intent to depart (§ 1229c(b)). A bond of at least $500 must be posted with ICE within five business days (§ 1240.26(c)(3)–(4)).

The judge also enters an alternate removal order (§ 1240.26(d)). A person who stays past the deadline faces a civil penalty of $1,000 to $5,000 and 10 years without voluntary departure, cancellation, adjustment, change of status or registry (§ 1229c(d)(1)); the regulation presumes a $3,000 penalty (§ 1240.26(l)). Our article on voluntary departure and its risks covers the trade-offs.

Stipulated removal. A judge may also enter a removal order agreed between the person and DHS without a hearing, on a written stipulation that concedes the charges, seeks no relief and waives appeal; for an unrepresented person the judge must find the waiver "voluntary, knowing, and intelligent" (8 C.F.R. § 1003.25(b)).

Appealing to the Board of Immigration Appeals

Either side may appeal the judge's decision to the BIA on Form EOIR-26, filed directly with the Board. The deadline is 30 calendar days from an oral decision or from the mailing or electronic service of a written one, and the appeal counts as filed on the day the Board receives it (8 C.F.R. § 1003.38). If the last day falls on a weekend or legal holiday, it moves to the next business day. Any issue not identified in the Notice of Appeal is treated as waived.

A warning about the printed rule. An interim final rule of February 6, 2026 (91 FR 5267, effective March 9, 2026) rewrote § 1003.38(b) to require most appeals within 10 days, and the eCFR still prints that text. A federal court vacated the 10-day deadline on March 8, 2026, and EOIR's Director confirmed in Policy Memorandum 26-02 (effective March 13, 2026) that it "is not in effect": the deadline remains 30 days. Our BIA appeals guide covers the rest of that rule, briefing and standards of review.

Fee. For filings on or after October 1, 2026 the fee for Form EOIR-26 is $1,060 — the $110 EOIR fee plus a $950 fee added by the 2025 budget law (H.R. 1); it was $1,030 before then (8 C.F.R. § 1103.7(b)(1); 91 FR 54211). A fee waiver can be requested on Form EOIR-26A. An appeal filed without the fee or a waiver request is not properly filed.

A timely appeal generally keeps the judge's removal order from becoming final while the Board decides it (§ 1003.39).

After the BIA: reopening, reconsideration and federal court

• Motion to reconsider — one motion, within 30 days of the final order, pointing to errors of law or fact (INA § 240(c)(6), § 1229a(c)(6)).
• Motion to reopen — one motion, within 90 days, based on new facts supported by evidence; there is no time limit for asylum or withholding based on changed country conditions, and in absentia orders follow their own rules (§ 1229a(c)(7)). See the motions to reopen guide.
• Petition for review — a final removal order can be challenged in the U.S. court of appeals "for the judicial circuit in which the immigration judge completed the proceedings," in a petition filed "not later than 30 days after the date of the final order of removal" (INA § 242(b)(1)–(2), 8 U.S.C. § 1252(b)). Filing it does not by itself stop removal; a stay must be requested. Our article on the petition for review explains the process.

Voluntary departure and later filings. Filing a motion to reopen or reconsider during the voluntary departure period ends the grant of voluntary departure (§ 1240.26(b)(3)(iii), (e)(1)), and filing a petition for review terminates it automatically (§ 1240.26(i)). A person holding a voluntary departure grant should decide on any further filing before the departure date. For voluntary departure and a removal order side by side, see deportation vs. voluntary departure.

Carlos Maury, a former U.S. Immigration Judge, leads Carlos Maury Law; to talk about a case at any stage of removal proceedings — a new Notice to Appear, a missed hearing, a merits hearing or an appeal — call (213) 769-0050. We speak Spanish.

If you are not sure whether you are in removal proceedings at all, start with our removal proceedings self-check. To have a former immigration judge defend your own case in court, see our deportation defense lawyer page. To appeal a removal order to the Board of Immigration Appeals or to reopen a case, see our immigration appeals lawyer page.