Removal proceedings, formerly known as deportation and exclusion proceedings, are administrative proceedings conducted before Immigration Courts throughout the U.S. Immigration Judges preside over removal proceedings and adjudicate removal cases. They determine whether certain foreign nationals are deportable from the U.S., whether they are admissible to the U.S., or whether they qualify for relief from removal that allows them to continue their stay in the U.S.
To initiate removal proceedings, the Department of Homeland Security (DHS) issues the charging document, entitled Notice to Appear, to the foreign national and serves it on her. The charging document that gives notice of the removal proceedings must contain, among other things, the following items: the nature of the proceedings against the person; her alleged U.S. immigration law violations that make her deportable or inadmissible; her right to representation by an attorney at her own costs in removal proceedings; the place and time of the proceedings; and the consequences of failing to appear at scheduled hearings, including the issuance of an in absentia order of deportation. Government attorneys from Chief Counsel’s Office of the DHS appear before the Immigration Courts. They represent the U.S. government and prosecute the removal cases like U.S. attorneys in criminal cases.
Once the validly issued and properly served charging document is filed with the Immigration Court, jurisdiction over the case vests in the Court and proceedings before it officially begin. After the Court has assumed jurisdiction over a case, an Immigration Judge conducts hearings, rules on motions and creates an administrative record of proceedings. He acts as the trier of facts; he considers all the factual issues relating to the individual’s case and makes findings of facts. He also takes on the role of a judge and makes rulings on legal issues. Initially, he determines the foreign national’s removability from the U. S. based on statutory deportation or inadmissibility grounds such as violations of U.S. immigration laws, criminal convictions and other security related issues. Then he makes a determination on the foreign national’s eligibility for relief from removal. The relief, if granted by the Immigration Judge, usually precludes the foreign national’s removal from the U.S. and allows him to continue his residence in the U.S. The popular forms of relief from removal consist of adjustment of status, cancellation of removal, and political asylum.
In removal proceedings, a foreign national is entitled to a full and fair hearing that meets the requirements of due process. In order to prevail on a claim for violation of her due process right, the foreign national must demonstrate that (1) the challenged proceeding was so fundamentally unfair that she was prevented from reasonably presenting her case, and (2) the alleged violation caused prejudice to her and affected the outcome of the proceeding. Additionally, the foreign national has a statutory right of being represented by counsel, authorized to practice in such proceedings, as she shall choose, at no expense to the government.
For foreign nationals appearing before the Immigration Court, legal representation is of great importance. Removal hearings involve formal hearings in which direct and cross examinations of witnesses are conducted, and documents and records are examined and admitted into the record as evidence. An attorney’s assistance ensures that evidence is properly admitted into the administrative record, facts are fully explored, and eligibility for relief from removal is fully supported.