Technically, persons who are not entitled to be in the United States are removed by the Government; deportation is a subset of removal, and generally refers to people who once had a right to be in the U.S. but subsequently lost it, while inadmissibility generally refers to people who entered the U.S. without a right to be here in the first place. The distinction between deportation and inadmissibility in removal proceedings is extremely important as differences in treatment may depend upon whether inadmissibility or deportability is charged, but in ordinary everyday speaking, removal and deportation are commonly considered to be the same thing.
Removal can have a number of distinct phases, including
Some persons are legally removed by the immigration officers without ever being brought before an immigration judge by a process known as expedited removal. This often occurs to persons who are discovered at or near the border entering illegally, or persons against whom deportation orders have been previously entered. There are very limited grounds to contest or overturn an expedited removal.
Some persons who enter illegally after a prior deportation are placed directly into federal criminal proceedings, as illegal re-entry after a prior deportation is a federal crime. If they are found guilty, they may be imprisoned. Those with prior convictions can receive extremely stiff, long sentences. Afterwards, they are usually removed again.
A person is placed in immigration removal proceedings (deportation) before an immigration judge by the service of a formal legal document called a Notice to Appear (shown with example and explanation).
Immigration judges are specialized administrative law judges who work for the U.S. Justice Department rather than part of the judicial branch of the federal government.
Persons who are stopped by Customs and Border Patrol near the borders and placed in removal are usually turned over to Immigration and Customs Enforcement, which is a sister agency located in the Department of Homeland Security. Interdications at locations in the U.S. away from the border are generally performed by Immigration and Customs Enforcement. When persons are initially detained, it can take some time to locate them, as they can be moved around and transferred between locations and agencies. The Mexican consulate in Arizona is often helpful in locating persons being held in detention who are citizens of Mexico. For all nationalities, usually within a day or two, information about their whereabouts is posted on the website of Immigration and Customs Enforcement, where a detainee locator web application is publicly available to find them.
Persons who apply to the Government for immigration benefits such as adjustment of status and who are denied and found removable may be placed in removal by USCIS, another agency in the U.S. Department of Homeland Security. Usually they are summoned to appear in immigration court by a Notice to Appear without being detained first, if they have no criminal record and are not considered dangerous.
The first stage of a removal proceeding usually is setting an immigration bond if the person is held in detention. The immigration officers have the power to set a bond initially, which is subject to review upon request by an immigration judge. Often a bond initially set by the immigration officers is reduced by the judge after a court hearing on the bond.
In a second stage, the person in removal, called the respondent, appears at a master calendar hearing before the immigration judge to plead formally to the charges in the Notice to Appear, and put forward any matters by way of claims for relief that may exist in the case, such as, by way of example only, entitlement to permanent residency by virtue of a close family relationship to a U.S. citizen, political asylum, cancellation of removal based on upon long residency without legal violations in the U.S. and extreme hardship to a qualifying relative if deported. Any legal matters not raised at the master calendar hearing may be deemed waived, so it is important to make sure that all legal claims are raised at this time.
The next stage is the individual hearing(s) in the case, where the Government and respondent produce evidence in support of their claims. The Government generally has to prove matters it asserts in the Notice to Appear by clear and convincing evidence, and the respondent has to prove any matters it has raised in defense.
Either side may appeal an unfavorable decision. Appeals are usually taken to the Board of Immigration Appeals, which is an appeals court also located in the Department of Justice, not the regular federal courts.
A respondent unhappy with a decision of the Board of Immigration Appeals may, if appropriate, seek review with the federal appeals court located in the jurisdiction of the immigration proceedings before the immigration judge.
In appropriate cases, review of the federal court of appeals decisions in immigration cases may be had before the U.S. Supreme Court.
If you have questions about a relative or friend in detention or a removal question, please contact Messing Law Offices, (520) 512-5432 .