The U.S. Department of Justice’s Executive Office for Immigration Review (EOIR) administers the Nation’s immigration court system. After the Department of Homeland Security (DHS) charges a foreign-born individual (an alien) with violating immigration laws, EOIR decides whether that individual is removable (deportable) from the country, and if found removable, whether they qualify for protection or relief from removal.
To make these determinations, EOIR’s Office of the Chief Immigration Judge (OCIJ) has approximately 350 immigration judges who conduct removal hearings and other administrative court proceedings in approximately 60 immigration courts nationwide.
EOIR’s appellate division, the Board of Immigration Appeals (BIA), hears appeals from certain immigration judges and DHS decisions. The majority of appeals involve orders of removal (deportation) and applications for protection or relief from removal.
The BIA designates certain orders as precedent decisions that are then published and apply to immigration cases nationwide. The federal circuit courts may also issue precedent decisions on immigration law issues that are then controlling in that particular federal circuit. The BIA is the highest administrative tribunal for interpreting and applying U.S. immigration law.
Also within EOIR is the Office of the Chief Administrative Hearing Officer (OCAHO), which hears cases involving employer sanctions for illegal hiring of unauthorized workers—and employment eligibility verification violations, unfair immigration-related employment practices, and civil-penalty document fraud.
Notice to Appear
A Notice to Appear (NTA) is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings against the individual.
Removal Proceedings Process
DHS initiates removal proceedings when it serves an alien with a Notice to Appear (NTA) and files that charging document with one of EOIR’s immigration courts. The NTA orders the alien to appear before an immigration judge and provides notice of several important facts, including:
• the removal proceedings;
• the alleged immigration law violations;
• the ability of the alien to seek legal representation at no expense to the Government; and
• the consequences of failing to appear at scheduled hearings.
During removal proceedings, a DHS attorney from U.S. Immigration and Customs Enforcement (ICE) represents the Government and presents evidence on the Government’s behalf. The alien—referred to as a respondent—may provide a defense to the charges or apply for any available and appropriate form of protection or relief from removal.
Respondents may, at no expense to the Government, seek an attorney or other authorized representative to represent them before the immigration court.
The immigration judge impartially and independently decides the case in accordance with applicable laws, regulations, and relevant case precedent (prior decisions). When the immigration court receives the NTA from DHS, the court schedules an initial hearing before an immigration judge.
At this hearing—called the master calendar hearing—the immigration judge explains the respondent’s rights and the alleged immigration law violations—and addresses legal representation (whether the respondent has wants to hire an attorney).
The immigration judge may also give the respondent the opportunity to plead to (admit) the factual allegations and charge(s) of removability. The immigration judge may then determine removability.
If the respondent is found removable and wishes to apply for protection or relief from removal, the immigration judge will schedule an individual merits hearing, during which both the respondent and the DHS attorney may present arguments and evidence related to the respondent’s application.
If the immigration judge finds the alien eligible for protection or relief from removal, the judge is then able to grant the application. If the respondent fails to appear for a scheduled hearing, the immigration judge will conduct an in absentia hearing, which is a removal hearing without the respondent present.
The immigration judge will order the respondent removed in absentia if DHS establishes by clear, unequivocal, and convincing evidence that:
• the respondent is removable;
• DHS served the respondent with a written NTA for the hearing that included information about the consequences of being absent for a hearing;
• the immigration court provided notice of the hearing to the address of record of the respondent or the respondent’s representative of record. Respondents are responsible for notifying the immigration court within five days of any change of address.
Forms of Protection or Relief from Removal
If an immigration judge finds that a respondent is removable as charged in the NTA, the respondent may apply for protection or relief from removal. The following procedures are some of the most common forms of protection and relief from removal.
Asylum
Asylum relief may be granted to eligible applicants (regardless of their country of origin) who are unable or unwilling to return to their country of nationality—or in the case of an alien having no nationality, the country of the alien’s last habitual residence—because of past persecution or a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion.
An asylum application must be filed within one year of the applicant’s arrival in the U.S. unless the applicant demonstrates changed circumstances that materially affect the applicant’s eligibility for asylum or extraordinary circumstances related to the delay in filing the application.
When asylum applicants are granted relief, they are permitted to remain in the U.S. Asylum relief may also be granted to an applicant’s spouse and children who are in the U.S. and who were included in the approved application. In time, asylees may apply for lawful permanent residence and, eventually, citizenship.
In many cases, asylum applicants are eligible for work authorization 180 days after they file their asylum application. An affirmative asylum application is one that an alien who is not in removal proceedings files with U.S. Citizenship and Immigration Services (USCIS), a component of DHS. A defensive asylum application is one a respondent files while already in removal proceedings.
Withholding of Removal
Withholding of removal is granted to qualified applicants who have established that it is more likely than not that their life or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion in the proposed country of removal. An order granting withholding of removal prohibits an alien’s removal to the country where his or her life or freedom would be threatened—but allows possible removal to a third country where the alien’s life or freedom would not be threatened.
Withholding of removal pertains solely to the applicant; therefore, eligible family members must file their own individual applications for withholding of removal. This form of relief cannot lead to lawful permanent residence status or citizenship, and a grant of withholding of removal does not entitle a respondent to a grant of work authorization.
Convention Against Torture (CAT)
CAT protections relate to the obligations of the U.S. under Article 3 of the United Nations Convention Against Torture. This is an international treaty provision designed to protect individuals from being returned to countries where it is more likely than not that they would face torture inflicted by, at the instigation of, or with the consent or acquiescence of a person acting in an official capacity, such as a public official.
In accordance with CAT, certain respondents may qualify to have their removal withheld or deferred. Protection under CAT is not relief from removal.
Cancellation of Removal
Cancellation of removal is a form of discretionary relief that is available to both certain legal permanent residents (LPRs) and non-LPRs, each with differing requirements:
• A respondent who is an LPR must have resided continuously in the U.S. for at least seven years, including at least five years as an LPR, and not been convicted of an aggravated felony. After establishing these requirements, an LPR respondent must also demonstrate that he or she warrants a favorable exercise of the court’s discretion.
• A respondent who is a non-LPR must have resided continuously in the U.S. for at least 10 years immediately preceding the cancellation application; be of good moral character during that time period; not have been convicted of certain criminal offenses; have a qualifying relative who is a U.S. citizen or LPR; and establish that the qualifying relative will suffer exceptional and extremely unusual hardship if the respondent is removed. After establishing these requirements, a non-LPR respondent must also demonstrate that he or she warrants a favorable exercise of the court’s discretion.
The law caps the number of cancellation of removal applications that may be granted to non-LPRs each year. This can cause delays in the issuance of the immigration judge’s decision following the final hearing.
Adjustment of Status
Adjustment of status is a form of discretionary relief that changes an applicant’s status from a nonimmigrant to an LPR while the applicant is present in the U.S. There are multiple ways to adjust status, but most adjustments in removal proceedings are based on an applicant’s qualifying relationship with a U.S. citizen or LPR family member.
In general, an applicant for adjustment of status in removal proceedings must have been inspected and admitted or paroled into the U.S. and establish that they are eligible for an immigrant visa, have one immediately available, and are otherwise admissible to the U.S.
Discretionary waivers are available for certain grounds of inadmissibility.
Voluntary Departure
A grant of voluntary departure allows removable aliens to leave the U.S. within a prescribed timeframe at their own expense. Voluntary departure also allows removable aliens to avoid some of the consequences of a removal order. For example, someone who voluntarily departs is not automatically barred from legally returning to the U.S. at a later date.
A respondent may request voluntary departure throughout the removal process, but the requirements become more rigorous as the process proceeds. As a general matter, aliens found to be removable due to an aggravated felony (as defined in immigration law) or terrorist activities, or to otherwise be a security risk to the U.S. are ineligible for voluntary departure at any stage.
Aliens may request voluntary departure at their master calendar hearing before the immigration judge. When aliens ask for voluntary departure prior to the conclusion of removal proceedings, they must give up their right to any other form of relief from removal and waive their right of appeal to the BIA, among other conditions.
An immigration judge may grant up to 120 days to depart. If travel documents are not immediately available to an alien, an immigration judge may grant up to 120 days to voluntarily depart on the condition that the alien secure travel documents and present them to DHS within 60 days. If the alien does not produce the travel documents, the voluntary departure order is vacated and the alien is ordered removed from the U.S.
Aliens may also request voluntary departure from the immigration judge at their individual hearing. Aliens requesting voluntary departure at this stage must meet several requirements. They must:
• have been physically present in the U.S. for at least one year before the date DHS issued the NTA;
• have been a person of good moral character for the five years preceding the request;
• not be deportable as an aggravated felon or terrorist;
• demonstrate the ability to leave the U.S. at their own expense (including the ability to present valid travel documents); and
• demonstrate the financial ability to post a bond of no less than $500.
The alien must also demonstrate that he or she warrants a favorable exercise of the court’s discretion. An immigration judge in this circumstance may grant up to 60 days for the alien to leave the U.S.
It is also important to note that aliens may request voluntary departure from DHS in advance of their first hearing before an immigration judge. In this circumstance, an alien may be required to depart immediately or be given up to 120 days to leave the U.S. The alien and DHS can agree to up to 120 days of voluntary departure at any time prior to the completion of the final hearing before the immigration judge.
Termination
Termination of proceedings dismisses the case related to a particular charging document. Sometimes the parties may agree to jointly terminate proceedings and must then present a joint motion to the immigration judge for review and decision.
Additionally, if an immigration judge finds that a respondent is not removable as charged or that the respondent has established eligibility for citizenship, the immigration judge may terminate proceedings. But it is important to note that terminated cases do not exempt the respondent from future proceedings under a new charging document, and termination does not confer any status upon the respondent.
Although not a form of protection or relief from removal, an immigration judge’s decision to terminate proceedings may enable a respondent to be granted voluntary departure by DHS or to pursue other relief claims.
Immigration Judge Decisions
At the conclusion of removal proceedings, the immigration judge may issue an oral decision, or reserve the decision for the issuance of a written order. Immigration judge decisions are made on a case-by-case basis according to applicable laws, regulations, and relevant case precedent.
When the immigration judge determines a respondent is either not removable or grants the respondent protection or relief from removal, the respondent may remain in the U.S. either temporarily or permanently, depending on the form of relief or protection granted.
Both parties have the opportunity to appeal an immigration judge’s decision to the BIA. If the immigration judge orders the respondent removed and the respondent does not file a timely appeal with the BIA, DHS may remove the respondent from the U.S.
In Texas, as in other states, the U.S. Department of Justice’s Executive Office for Immigration Review (EOIR) oversees the immigration court system. When the Department of Homeland Security (DHS) charges an individual with immigration law violations, EOIR determines their removability and eligibility for relief or protection. Immigration judges within the Office of the Chief Immigration Judge (OCIJ) conduct hearings, and the Board of Immigration Appeals (BIA) hears appeals, setting precedents that apply nationally. The Office of the Chief Administrative Hearing Officer (OCAHO) deals with cases involving employer sanctions and related issues. Removal proceedings begin with a Notice to Appear (NTA), and during these proceedings, the individual (respondent) can defend against the charges and apply for various forms of relief, such as asylum, withholding of removal, protection under the Convention Against Torture (CAT), cancellation of removal, adjustment of status, and voluntary departure. Immigration judges make decisions based on laws, regulations, and precedents, and their decisions can be appealed to the BIA. If the respondent does not appeal or the appeal is unsuccessful, DHS may execute the removal from the U.S.
