Removal Proceedings

Removal Proceedings

Removal proceedings are the formal legal proceedings through which the United States government seeks to determine whether a noncitizen may remain in the United States or must be removed to another country.

The modern removal system was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which replaced the older distinction between “deportation” and “exclusion” proceedings with a unified removal process. The principal statutory framework appears in the Immigration and Nationality Act (INA), particularly 8 U.S.C. §§ 1229–1229a.

Removal proceedings are civil immigration proceedings rather than criminal prosecutions. A person in removal proceedings is not being criminally prosecuted merely because the government has initiated those proceedings. At the same time, the consequences can be extraordinarily serious: removal may separate families, terminate lawful immigration status, prevent future admission to the United States, and in some circumstances result in lengthy or permanent immigration consequences.

Cornell’s Legal Information Institute provides the statutory framework for removal proceedings under 8 U.S.C. § 1229a and the broader body of U.S. immigration law.

What Are Removal Proceedings?

Removal proceedings are proceedings before an immigration judge in which the government seeks an order determining that a noncitizen is removable from the United States.

The government generally must establish a legal basis for removal under the INA.

The proceeding may involve questions such as:

• whether the person is a noncitizen;
• whether the person was properly admitted to the United States;
• whether the person has lawful immigration status;
• whether the person violated the conditions of that status;
• whether a ground of inadmissibility applies;
• whether a ground of deportability applies;
• whether the person is entitled to asylum or another form of protection;
• whether the person qualifies for cancellation of removal or another form of relief; and
• whether the person should ultimately receive an order of removal.

The proceeding is therefore more than a simple government decision to “deport” someone. It is a legal adjudication in which the government’s allegations and the noncitizen’s defenses or applications for relief are considered under federal immigration law.

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Removal Is a Civil Immigration Matter

Removal proceedings are generally classified as civil, not criminal.

This distinction matters.

A person can be placed in removal proceedings without having committed a crime. For example, a person may become removable because of an immigration-status violation even when no criminal offense has been charged.

Conversely, certain criminal convictions can create immigration grounds of removability in addition to whatever criminal sentence the person may receive.

The two systems can therefore overlap without becoming the same proceeding.

A criminal court determines criminal liability and imposes criminal punishment.

An immigration court determines whether the person is removable under immigration law and whether the person qualifies for available immigration relief.

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Who Initiates Removal Proceedings?

The federal government generally initiates removal proceedings through the Department of Homeland Security (DHS).

Several DHS components can become involved, including:

• U.S. Immigration and Customs Enforcement (ICE);
• U.S. Customs and Border Protection (CBP); and
• U.S. Citizenship and Immigration Services (USCIS), depending on the circumstances.

The Department of Justice, rather than DHS, houses the Executive Office for Immigration Review (EOIR), which administers the immigration courts and the Board of Immigration Appeals.

This division of governmental functions is important.

DHS generally acts as the government party seeking removal.

The immigration judge, within EOIR, adjudicates the case.

The immigration judge is therefore not simply an employee representing DHS.

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The Notice to Appear

Removal proceedings are ordinarily commenced by serving the noncitizen with a Notice to Appear (NTA).

The NTA is the charging document used by DHS to initiate removal proceedings.

It generally identifies:

• the person;
• the alleged immigration status;
• the factual allegations;
• the statutory grounds of removability; and
• the consequences sought by the government.

The NTA is therefore comparable, in a general procedural sense, to a charging document in other legal systems, although removal proceedings are civil rather than criminal.

A person receiving an NTA should pay close attention to the factual allegations and statutory charges because the government’s legal theory determines the framework under which removability will be evaluated.

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The Allegations in a Notice to Appear

An NTA generally contains factual allegations that the government intends to establish.

For example, DHS might allege that a person:

• is not a U.S. citizen;
• is a citizen or national of a particular foreign country;
• entered the United States on a particular date;
• was admitted under a particular immigration classification;
• remained beyond the authorized period;
• worked without authorization; or
• committed conduct creating a statutory ground of removability.

The respondent may admit or deny the allegations.

The factual allegations and the legal charges should be distinguished.

An allegation might state that a person entered without inspection.

The legal charge would identify the statutory provision that allegedly makes that person removable.

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The Respondent

The noncitizen in removal proceedings is commonly referred to as the respondent.

The respondent has the opportunity to respond to the government’s allegations and charges.

Depending on the case, the respondent may:

• concede removability;
• deny removability;
• challenge the factual allegations;
• challenge the legal charges;
• seek termination of proceedings where legally available;
• apply for asylum;
• seek withholding of removal;
• seek protection under the Convention Against Torture;
• seek cancellation of removal;
• seek adjustment of status;
• seek another form of immigration relief; or
• pursue other available defenses.

The existence of removal proceedings therefore does not necessarily mean that removal will ultimately occur.

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Inadmissibility and Deportability

Two major statutory concepts are particularly important in removal law: inadmissibility and deportability.

Inadmissibility generally concerns persons seeking admission to the United States.

Deportability concerns certain persons who have already been admitted.

The distinction can be legally significant because the applicable statutory grounds and procedural consequences differ.

Cornell’s Legal Information Institute provides the statutory framework for inadmissibility under 8 U.S.C. § 1182 and deportability under 8 U.S.C. § 1227.

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Grounds of Deportability

A person who has been admitted to the United States can become deportable under various provisions of the INA.

Grounds can involve circumstances such as:

• certain criminal convictions;
• immigration-status violations;
• fraud or misrepresentation;
• failure to comply with certain immigration requirements;
• certain security-related conduct;
• public-charge-related provisions in circumstances specified by law;
• marriage fraud;
• certain violations involving documentation; and
• other statutory grounds.

The precise statutory language matters.

Immigration law does not generally operate on the principle that every violation produces the same consequence. Different grounds carry different definitions, exceptions, defenses, and forms of relief.

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Grounds of Inadmissibility in Removal Proceedings

Inadmissibility grounds can also become relevant in removal proceedings, particularly for people who were not lawfully admitted or who are treated as applicants for admission under the applicable immigration rules.

This is one reason the simple distinction between “illegal entry” and “illegal presence” can be misleading.

The legal classification of the person and the circumstances of entry can determine which statutory provisions apply.

Removal law therefore requires careful attention to the person’s immigration history rather than relying solely on everyday terminology.

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The Immigration Court

Removal proceedings are generally heard by an immigration judge.

Immigration courts are part of the Executive Office for Immigration Review within the U.S. Department of Justice.

The immigration judge conducts hearings, considers evidence, determines removability, and adjudicates applications for relief within the court’s jurisdiction.

The immigration judge may make decisions concerning:

• removability;
• asylum;
• withholding of removal;
• Convention Against Torture protection;
• cancellation of removal;
• adjustment of status;
• certain waivers;
• voluntary departure; and
• other forms of immigration relief.

The immigration judge does not, however, have unlimited authority to grant every immigration benefit available under federal law.

Jurisdiction depends upon the particular benefit and statutory framework.

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Master Calendar Hearings

Many removal cases begin with a master calendar hearing.

The master calendar hearing is generally a preliminary procedural hearing rather than the full evidentiary trial.

During the proceeding, the immigration judge may address matters such as:

• whether the respondent has received the NTA;
• the factual allegations;
• the grounds of removability;
• pleadings;
• scheduling;
• applications for relief;
• filing deadlines; and
• future hearing dates.

The respondent may admit or deny the allegations and charges.

If the case requires extensive testimony and documentary evidence, the immigration judge may schedule a separate individual hearing.

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Individual Hearings

An individual hearing is the principal evidentiary hearing in many contested removal cases.

The parties may present:

• testimony;
• documentary evidence;
• witnesses;
• expert evidence;
• legal arguments; and
• applications for relief.

The immigration judge evaluates the evidence and issues a decision.

In an asylum case, for example, the respondent may testify about past persecution or fear of future persecution and present supporting evidence.

In a cancellation-of-removal case, the respondent may present evidence concerning residence, family relationships, hardship, and other statutory requirements.

The precise evidence depends upon the form of relief being sought.

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The Government’s Burden of Proof

The government generally bears the burden of establishing removability under the applicable statutory framework.

For a person who has been admitted to the United States, the government generally must establish the relevant grounds of deportability by clear and convincing evidence.

Different rules can apply to individuals who are treated as applicants for admission.

Once removability has been established, the burden may shift depending upon the particular application for relief.

This distinction is critical.

There are therefore often two separate questions:

First: Is the person removable?

Second: Even if removable, does the person qualify for relief that permits the person to remain?

These questions should not be confused.

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Relief From Removal

A person can be legally removable and still have a possible legal basis to remain in the United States.

This is because immigration law provides several forms of relief from removal.

Depending upon the facts, these can include:

• asylum;
• withholding of removal;
• Convention Against Torture protection;
• cancellation of removal;
• adjustment of status;
• certain waivers;
• certain forms of protection under special statutes; and
• voluntary departure.

Each form of relief has different eligibility requirements.

A respondent therefore may concede that a ground of removability exists while arguing that federal law nevertheless permits the person to remain.

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Asylum in Removal Proceedings

Asylum is one of the most important forms of relief sought in removal proceedings.

A respondent may argue that returning to the country of nationality would expose the person to persecution because of:

• race;
• religion;
• nationality;
• political opinion; or
• membership in a particular social group.

The respondent must satisfy the statutory asylum requirements and overcome any applicable bars.

If asylum is granted, the respondent receives protected status rather than being removed under the order.

Asylum proceedings can therefore transform the central issue from:

“Is this person removable?”

to:

“Even if this person is removable, does federal law prohibit or prevent removal because the person qualifies for humanitarian protection?”

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Withholding of Removal

Withholding of removal is a separate form of protection.

The applicant generally must establish that it is more likely than not that the person would be persecuted on account of a protected ground if removed to the relevant country.

This is a higher standard than the well-founded-fear standard generally associated with asylum.

Withholding can protect a person from removal to a particular country, but it does not confer the same immigration status as asylum and generally does not provide the same direct pathway to lawful permanent residence.

A person may therefore lose an asylum claim while succeeding on a withholding claim.

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Convention Against Torture Protection

Protection under the Convention Against Torture, commonly called CAT protection, is another possible form of relief.

CAT focuses on torture rather than the five asylum protected grounds.

A person generally must establish that it is more likely than not that the person would be tortured if removed to the proposed country and satisfy the other requirements governing CAT protection.

Because CAT does not require the torture to be motivated by a protected asylum ground, it can sometimes protect individuals who do not qualify for asylum or withholding based on persecution.

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Cancellation of Removal

Cancellation of removal is another potential form of relief, but its requirements differ substantially depending upon whether the applicant is a lawful permanent resident or a nonpermanent resident.

For certain lawful permanent residents, eligibility can depend on factors including:

• the length of lawful permanent residence;
• the length of continuous residence;
• the nature of the criminal offense involved; and
• whether the person satisfies other statutory requirements.

For certain nonpermanent residents, the requirements can include:

• a specified period of continuous physical presence;
• good moral character;
• absence of certain disqualifying offenses; and
• exceptional and extremely unusual hardship to a qualifying U.S. citizen or lawful permanent resident spouse, parent, or child.

Cancellation of removal is therefore not simply a general hardship waiver.

Congress established specific statutory requirements, and immigration judges apply those requirements within the removal process.

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Adjustment of Status in Removal Proceedings

In some circumstances, a person in removal proceedings may seek adjustment of status to lawful permanent residence.

For example, a person may have an independent family-based or employment-based basis for permanent residence.

The availability of adjustment in removal proceedings depends upon statutory eligibility and the jurisdiction of the immigration court.

A person might therefore be removable based on one aspect of immigration history while simultaneously possessing a separate legal basis for adjustment.

This illustrates again why removability and eligibility for relief are distinct questions.

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Voluntary Departure

Voluntary departure is a form of relief under which an eligible person may leave the United States voluntarily rather than receive a formal order of removal, subject to statutory requirements and applicable deadlines.

It is not the same as winning a removal case.

A person who receives voluntary departure agrees to depart within the permitted period.

The consequences can differ from those associated with a formal removal order, including consequences for future immigration benefits.

Because voluntary departure can involve significant legal consequences, it must be understood as a specific statutory form of relief rather than simply “leaving voluntarily.”

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Stipulated Removal Orders

In some circumstances, a respondent may agree to a removal order without a full contested hearing.

A stipulated order of removal is a legally significant document.

Agreeing to removal can affect future immigration options and may trigger consequences associated with the removal order.

The decision to accept or contest removal therefore should not be treated as a purely administrative choice.

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Expedited Removal vs. Removal Proceedings

Not every person facing removal receives the same type of proceeding.

The immigration system includes expedited removal, a separate procedure that can allow certain noncitizens to be removed through an administrative process without the ordinary full removal proceedings before an immigration judge.

Expedited removal is particularly important at the border and in certain other circumstances established by federal law.

The ordinary removal process under § 1229a and expedited removal are therefore distinct legal mechanisms.

The existence of an expedited-removal authority does not mean that every person encountered by immigration authorities is subject to that procedure.

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Credible Fear and Fear-Based Protection Claims

Certain people subject to expedited removal may express a fear of persecution or torture.

In appropriate circumstances, the government conducts a credible-fear screening process to determine whether the person may pursue a protection claim through further procedures.

A credible-fear determination is not the same thing as a grant of asylum.

It is a threshold screening mechanism.

The applicant must still establish eligibility for asylum, withholding, or CAT protection through the appropriate process.

This distinction is important because passing a credible-fear screening does not mean the applicant has already won the underlying asylum case.

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Immigration Detention

Some people in removal proceedings are detained by immigration authorities.

Detention is separate from the underlying question of whether the person is removable.

Federal immigration law contains different detention authorities, including mandatory and discretionary detention provisions.

Depending on the circumstances, a detained person may seek release through mechanisms such as:

• bond proceedings;
• parole;
• other forms of custody review; or
• federal judicial review in appropriate cases.

The availability of release mechanisms depends heavily on the person’s immigration history and the statutory basis for detention.

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Bond Proceedings

A bond hearing concerns custody, not the ultimate merits of the removal case.

An immigration judge may determine whether a detained respondent is eligible for release and, where appropriate, whether a monetary bond or other conditions are warranted.

The immigration judge’s decision on detention does not necessarily decide whether the person is removable.

Thus, the following are separate questions:

Custody: Should the person remain detained?

Removability: Is the person legally removable?

Relief: Is the person entitled to remain in the United States despite removability?

Keeping these issues separate is essential to understanding immigration court proceedings.

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The Role of Immigration Attorneys

A respondent has important procedural rights in removal proceedings, including the right to be represented by counsel at no expense to the government.

This means that the government generally does not appoint and pay for an immigration lawyer in the same manner that counsel may be appointed in certain criminal cases.

A respondent may retain private counsel or, where available, obtain assistance from nonprofit or other legal-service organizations.

Representation can be particularly significant because immigration law contains complex statutory definitions, procedural deadlines, evidentiary requirements, and forms of relief.

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The Right to Present Evidence

Removal proceedings provide a legal framework for presenting evidence.

Depending upon the case, evidence may include:

• immigration records;
• passports and identity documents;
• birth and marriage certificates;
• employment records;
• tax records;
• criminal court records;
• medical records;
• affidavits;
• expert reports;
• country-condition evidence;
• photographs;
• electronic communications; and
• witness testimony.

The relevance and admissibility of evidence depend upon the particular issue being litigated.

Evidence must therefore be connected to a legal proposition that matters to the case.

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Interpreter Rights

A respondent who cannot adequately understand English may be entitled to interpretation during immigration court proceedings.

Effective communication is essential because removal proceedings can determine whether a person may remain in the United States.

Language issues can therefore have direct procedural significance.

The need for interpretation should be addressed through the appropriate court procedures rather than assuming that limited English proficiency will not affect the case.

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Immigration Judge Decisions

At the conclusion of proceedings, an immigration judge may issue a decision.

The judge may:

• sustain the government’s charges and order removal;
• terminate proceedings where legally appropriate;
• grant relief from removal;
• deny requested relief;
• grant voluntary departure where eligible; or
• issue another legally authorized disposition.

A decision can therefore produce very different outcomes depending on the facts and applicable law.

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Removal Orders

If the immigration judge determines that the person is removable and no applicable relief prevents removal, the judge may issue a removal order.

A removal order has legal consequences beyond simply requiring the person to leave the United States.

It can affect:

• future admission;
• visa eligibility;
• adjustment of status;
• unlawful-reentry consequences;
• eligibility for certain immigration benefits; and
• the person’s future immigration history.

The length and nature of the consequences depend upon the statutory circumstances underlying the removal.

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Appeals to the Board of Immigration Appeals

A party who is permitted to appeal may seek review of an immigration judge’s decision before the Board of Immigration Appeals (BIA).

The BIA is part of the Executive Office for Immigration Review.

An appeal can raise legal or factual issues, depending upon the nature of the decision and applicable standards of review.

There are strict procedural rules and deadlines governing immigration appeals.

The filing of an appeal does not necessarily have identical consequences in every situation, and the effect of a filing can depend upon the type of order and applicable law.

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Federal Court Review

After administrative review, judicial review may be available in the federal courts under the circumstances permitted by federal law.

The federal courts’ jurisdiction over immigration matters is governed by statutes and constitutional principles.

Certain immigration decisions are subject to significant jurisdictional limitations, while others may be reviewed under the applicable federal judicial-review framework.

The relationship among immigration courts, the BIA, federal district courts, and federal courts of appeals can therefore be complicated.

A removal case does not automatically receive unlimited judicial review simply because the respondent disagrees with an immigration judge’s decision.

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Motions to Reopen

A person may sometimes seek to reopen an immigration case.

A motion to reopen generally asks the immigration court or BIA to consider new facts or circumstances that were not previously presented.

Depending upon the circumstances, reopening may be relevant where:

• new evidence becomes available;
• circumstances have materially changed;
• the person becomes eligible for a new form of relief;
• exceptional circumstances affect the case; or
• other legally recognized grounds exist.

Strict procedural requirements and deadlines can apply, although immigration law contains certain exceptions.

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Motions to Reconsider

A motion to reconsider is different from a motion to reopen.

A motion to reconsider generally argues that the prior decision was legally or factually incorrect based on the existing record and applicable law.

A motion to reopen generally presents new evidence or changed circumstances.

The distinction is important:

Reconsideration:
“The prior decision was wrong.”

Reopening:
“There is new information or a changed circumstance that requires the case to be considered again.”

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Final Orders of Removal

Once the administrative process is complete, a removal order may become final.

A final order can authorize the government to carry out removal subject to applicable legal and procedural requirements.

However, the existence of a final order does not necessarily mean that physical removal occurs immediately.

Issues involving travel documents, country acceptance, detention, judicial review, stays, humanitarian circumstances, and other legal or practical factors can affect enforcement.

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Reinstatement of Removal Orders

Federal immigration law also provides a mechanism known as reinstatement of removal for certain noncitizens who return to the United States after having previously been removed.

Under applicable circumstances, the government may reinstate the earlier removal order rather than initiate an entirely new ordinary removal proceeding.

However, certain individuals who express a fear of return may enter additional protection-screening procedures.

The distinction illustrates again that immigration enforcement contains multiple procedural tracks.

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Unlawful Reentry After Removal

Returning to the United States after removal can create serious legal consequences.

In certain circumstances, unlawful reentry after removal can constitute a federal criminal offense under 8 U.S.C. § 1326.

This creates an important distinction between the original civil removal proceeding and a later criminal prosecution.

A person can therefore face both:

1. immigration consequences arising from the removal order; and
2. potential criminal consequences for certain subsequent unlawful reentry.

Removal itself is generally civil, but conduct associated with entering or returning to the United States can independently trigger criminal liability.

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Removal and Lawful Permanent Residents

Lawful permanent residents are not immune from removal.

A green-card holder can become removable under certain provisions of the INA, including provisions relating to criminal conduct, immigration violations, fraud, and other statutory grounds.

At the same time, lawful permanent residents may have access to forms of relief that are unavailable to some other respondents.

For example, certain permanent residents may qualify for cancellation of removal for certain permanent residents, subject to statutory requirements.

Permanent residence is therefore a significant immigration status, but it is not an absolute guarantee against removal.

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Removal and Criminal Convictions

Criminal convictions can have profound immigration consequences.

Certain convictions may create grounds of deportability or inadmissibility.

The immigration consequences of a conviction depend upon the precise offense, the statutory definition, the sentence, the person’s immigration status, and other factors.

Terms such as:

• aggravated felony;
• crime involving moral turpitude;
• controlled-substance offense; and
• crime of domestic violence

have specialized meanings in federal immigration law that do not always correspond exactly to ordinary-language descriptions of criminal conduct.

This is one reason criminal and immigration law can intersect in highly technical ways.

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The Difference Between Removal and Deportation

The word deportation remains widely used in ordinary conversation.

Technically, however, modern federal law generally uses the term removal to describe the formal process.

The older immigration system distinguished deportation proceedings from exclusion proceedings.

The current framework largely replaced those categories with a unified removal system.

Nevertheless, “deportation” remains a common informal term for the physical or legal process of forcing a noncitizen to leave the United States.

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Can a Removal Case Be Terminated?

In some circumstances, removal proceedings may be terminated.

Termination can become relevant when:

• the government cannot establish removability;
• the charging document is legally deficient under applicable law;
• the respondent obtains another form of immigration status;
• prosecutorial discretion is exercised where authorized;
• a legal or jurisdictional defect exists; or
• another statutory or regulatory basis for termination applies.

Termination does not necessarily mean that the person has been granted lawful permanent residence.

It means that the particular removal proceeding has ended without the requested removal order, subject to the legal basis and consequences of the termination.

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Prosecutorial Discretion

The government possesses enforcement discretion in immigration matters.

DHS may, within the limits of federal law and applicable policies, decide how aggressively to pursue a particular removal case.

Possible forms of prosecutorial discretion have included decisions concerning:

• whether to pursue a case;
• whether to continue pursuing a case;
• whether to seek dismissal or termination where legally available;
• detention decisions; and
• other enforcement priorities.

Prosecutorial discretion is different from a judicial determination that the person is legally entitled to remain in the United States.

A discretionary decision can change the government’s enforcement posture without necessarily creating a permanent immigration status.

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The Importance of Deadlines

Removal proceedings are governed by numerous procedural deadlines.

These can concern:

• responding to allegations;
• filing applications for relief;
• appealing decisions;
• submitting evidence;
• filing motions;
• requesting reconsideration or reopening; and
• complying with voluntary-departure deadlines.

Missing a deadline can seriously affect a person’s legal position.

The one-year asylum deadline discussed in the previous article is only one example of the time-sensitive nature of immigration law.

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Removal Proceedings and Due Process

Because removal proceedings can profoundly affect liberty, family relationships, residence, and future immigration opportunities, constitutional due-process principles can apply.

The exact scope of procedural protections depends upon the person’s legal status and the particular proceeding.

Immigration law is therefore not a system in which the government can simply remove every noncitizen without legal procedure.

At the same time, the procedural protections available in immigration proceedings are not identical to the protections applicable in criminal prosecutions.

Understanding this distinction is essential to understanding the constitutional structure of immigration enforcement.

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The Basic Structure of a Removal Case

A simplified removal proceeding can be understood as follows:

1. DHS initiates the case

The government serves a Notice to Appear.

2. The respondent appears before an immigration judge

The court identifies the issues and addresses the government’s allegations and charges.

3. The respondent responds

The respondent may admit or deny the allegations and contest the legal grounds of removability.

4. Removability is determined

The government must satisfy the applicable burden of proof.

5. Relief is considered

If the person is removable, the respondent may seek any available statutory form of relief.

6. Evidence and testimony are presented

The immigration judge considers the record.

7. The immigration judge issues a decision

The judge may order removal, grant relief, terminate the case, or issue another authorized disposition.

8. Administrative appeal may follow

A qualifying party may appeal to the BIA.

9. Judicial review may be available

Federal court review may be possible within the limits established by federal law.

This sequence is a simplified model. Actual cases can diverge considerably depending upon detention status, the immigration history, the charges, the relief requested, and procedural developments.

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Common Misconceptions About Removal Proceedings

“Being placed in removal proceedings means the person has already been deported.”

No. Removal proceedings are the legal process through which removability is adjudicated. Physical removal generally occurs only after the applicable legal process and any relevant stays or other procedures.

“Only people who committed crimes can be removed.”

No. Immigration violations can create grounds of removability even without a criminal conviction.

“A green-card holder cannot be deported.”

A lawful permanent resident can become removable under certain statutory grounds.

“An immigration judge automatically works for ICE.”

No. Immigration judges adjudicate cases within the Executive Office for Immigration Review, which is part of the Department of Justice. DHS and its components generally represent the government side of the removal case.

“If someone is removable, there is no way to remain in the United States.”

Not necessarily. Certain respondents may qualify for asylum, withholding of removal, CAT protection, cancellation of removal, adjustment of status, waivers, or other forms of relief.

“Winning a bond hearing means winning the immigration case.”

No. A bond proceeding concerns custody. It does not determine whether the person is removable or entitled to permanent immigration relief.

“Asylum and withholding of removal are the same.”

No. They have different standards, legal consequences, and pathways to immigration status.

“An appeal automatically means the removal order disappears.”

No. An appeal challenges a decision; its effect on the enforceability of an order depends upon the applicable rules and circumstances.

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Key Takeaways

• Removal proceedings are formal civil proceedings used to determine whether a noncitizen is removable from the United States.
• DHS generally initiates removal proceedings through a Notice to Appear.
• Immigration judges within the Executive Office for Immigration Review adjudicate removal cases.
• Removal proceedings are civil rather than criminal, although criminal conduct can create immigration consequences and later unlawful reentry can constitute a federal crime.
• The government generally bears the burden of establishing removability under the applicable statutory framework.
• Inadmissibility and deportability are distinct statutory concepts.
• A person can be removable and nevertheless qualify for relief from removal.
• Major forms of relief can include asylum, withholding of removal, CAT protection, cancellation of removal, adjustment of status, waivers, and voluntary departure.
• Master calendar hearings generally address preliminary and procedural matters.
• Individual hearings are used for extensive testimony, evidence, and legal arguments in contested cases.
• Immigration detention and bond proceedings are separate from the merits of removability.
• Immigration proceedings provide important procedural protections, but they are not criminal prosecutions and do not provide all of the same rights as criminal proceedings.
• Immigration judge decisions can generally be appealed to the Board of Immigration Appeals when an appeal is available.
• Federal judicial review may be available in appropriate cases but is subject to significant statutory and jurisdictional rules.
• Motions to reopen and reconsider serve different legal purposes.
• Lawful permanent residents can become removable under certain circumstances.
• Criminal convictions can have substantial immigration consequences.
• Removal orders can affect future immigration opportunities long after the original proceeding ends.
• Certain forms of protection may prevent removal to a particular country without providing lawful permanent residence.
• The word “deportation” remains common, but modern federal immigration law generally uses the term “removal.”

Frequently Asked Questions

What are removal proceedings?

Removal proceedings are civil legal proceedings in which the U.S. government seeks a determination that a noncitizen is removable from the United States.

Who starts removal proceedings?

The Department of Homeland Security generally initiates removal proceedings by serving a Notice to Appear.

What is a Notice to Appear?

A Notice to Appear, or NTA, is the charging document that generally identifies the factual allegations and legal grounds on which DHS seeks removal.

Who decides a removal case?

An immigration judge generally decides the case in the first instance. Appeals may be available to the Board of Immigration Appeals, followed in appropriate circumstances by judicial review.

Is removal the same as a criminal prosecution?

No. Removal proceedings are generally civil immigration proceedings. However, criminal convictions can create immigration grounds of removal, and certain later unlawful reentry can constitute a federal criminal offense.

Can someone fight removal?

Potentially. A respondent may challenge the government’s allegations or charges and, if removable, may seek an available form of relief.

Can an asylum applicant be placed in removal proceedings?

Yes. Asylum can be pursued defensively as a form of protection in removal proceedings.

What is the difference between a master calendar hearing and an individual hearing?

A master calendar hearing generally handles preliminary and procedural matters. An individual hearing is generally the more extensive evidentiary hearing at which testimony, witnesses, documents, and legal arguments may be presented.

Can a green-card holder be placed in removal proceedings?

Yes. Lawful permanent residents can become removable under certain statutory grounds, including certain criminal and immigration violations.

Does immigration detention mean that a person has already been ordered removed?

No. Detention concerns custody and is legally separate from the merits of the removal case.

What is a bond hearing?

A bond hearing concerns whether a detained person may be released from immigration custody and under what conditions. It does not decide whether the person is removable.

Can a person appeal an immigration judge’s decision?

In many cases, a qualifying party can appeal to the Board of Immigration Appeals. Additional judicial review may be available under federal law.

What is a motion to reopen?

A motion to reopen generally asks an immigration tribunal to reconsider a case because of new evidence or changed circumstances or another legally recognized basis.

What is a motion to reconsider?

A motion to reconsider generally argues that an existing decision was legally or factually incorrect based on the record and applicable law.

Can removal proceedings be terminated?

In some circumstances, yes. Termination can occur on various legal, jurisdictional, procedural, or discretionary grounds, depending upon the case.

Does leaving the United States voluntarily mean there is no immigration consequence?

Not necessarily. The legal consequences depend upon whether the person receives voluntary departure, leaves after a removal order, has accumulated unlawful presence, or falls within another statutory provision.

Conclusion

Removal proceedings represent the principal formal adjudicative mechanism through which the federal government seeks to remove a noncitizen from the United States. They are civil immigration proceedings, but their consequences can be profound and long-lasting.

The structure of a removal case begins with a government charging document, usually a Notice to Appear, and proceeds through immigration court. The government must establish the applicable basis for removability under federal immigration law. The respondent may contest the allegations, challenge the charges, or, where removability is established, seek a form of relief that permits the person to remain.

This last point is fundamental. Removability and removal are not always the same thing. A person may fall within a statutory ground of removal but still qualify for asylum, withholding of removal, CAT protection, cancellation of removal, adjustment of status, a waiver, or another form of relief.

The system also contains multiple layers of review. Immigration judges adjudicate cases in the first instance; the Board of Immigration Appeals can review qualifying decisions; and federal courts may provide judicial review within the jurisdictional limits established by Congress.

Removal law therefore sits at the center of U.S. immigration enforcement. It connects immigration status, inadmissibility and deportability, humanitarian protection, detention, criminal convictions, administrative adjudication, and judicial review. Understanding its structure is essential to understanding how federal immigration law determines not only who may enter the United States, but who may remain here.