What to Expect in a Removal Proceeding

If you are in the United States and are not a citizen, you are an alien. As an alien, you may be in the United States legally or illegally. Did you enter the United States without being admitted by an Inspector at a port-of-entry? Did you enter the United States legally either by presenting a visa, or through the visa waiver program, but fail to depart when required (i.e., by the date specified on your I-94)? If you answered “yes” to either to these questions, you are in the United States illegally and therefore subject to being arrested and placed in a removal proceeding before an immigration judge (IJ) to determine if you are to be removed (i.e., expelled) from the United States.

Being in the United States illegally is not, however, the only reason that you might find yourself in a removal proceeding. You might be in the country legally but have been convicted of one of the many criminal offenses that provide a reason for removal. You might also be here legally but have been unable to provide proof of your status at the time of your arrest.

It is probable that the person or persons making this arrest were officers of Immigration and Customs Enforcement (ICE). ICE is an agency of the Department of Homeland Security (DHS), charged with enforcing certain immigration laws such as the ones that can make an alien subject to removal. Please note that the term “arrest” in this context does not relate to a criminal proceeding. Removal proceedings are civil rather than criminal. In other words, the alleged immigration law violation which is the reason you find yourself in a removal proceeding is not a crime.

If an ICE officer arrests you, he/she will almost certainly transport you to a detention facility. This facility may be operated by the federal government, a local government, or a private contractor. Several things will happen while you are there. ICE will serve you with a Notice to Appear (NTA). This document will list the specific immigration law(s) the government is alleging that you have violated. It may also set forth the date, time, and place of your first hearing before an IJ. Unless one or more of your alleged violations makes you subject to mandatory detention, ICE will set a bond amount (usually $5,000-10,000). The formal name for this bond is an immigration delivery bond.

The amount of the bond is referred to the penal amount. It is the amount which either you or someone acting on your behalf must post with ICE to secure your release from the detention facility. There are two ways in which someone may post an immigration delivery bond. The first is with cash directly to ICE. Under this method the bond is a contract between the government and the person posting the cash. The second method is indirectly through a surety agent. In this method there are two contracts. The first is between you or the person acting on your behalf and the surety agent, and the second (the actual bond contract) is between the surety agent and the government. In the first, the surety agent will charge a nonrefundable premium and require some form of security (e.g., cash or a lien on real property). Action Immigration Bonds is an example of a surety agent which posts immigration delivery bonds.

Once the bond is posted, ICE will release you from custody. Your removal proceeding, however, is just beginning. At the time of your release, ICE will require an address at which you can be contacted. It is extremely important that you provide an accurate address and update it as necessary. This address is the one to which the government will send notices such as ones about immigration court hearings. If you fail to show up for a hearings, the IJ can enter an in absentia order of removal. Immigration courts are part of the Executive Office of Immigration Review (EOIR), an agency of the Department of Justice (DOJ).

Your first immigration court hearing will be similar to an arraignment in a criminal case. It is called a master calendar hearing. At this hearing the IJ will read the government’s allegations of immigration law violations that make you subject to removal. If you do not understand English, the court will provide an interpreter. You can either admit or deny these allegations. If you admit them, and do not seek some form of relief, the IJ will immediately enter an order of removal. If you either deny them, or petition for some form of relief, the IJ will schedule your case for a hearing on the merits.

You are entitled to have an attorney represent you during an immigration court proceeding, but only at your own expense. Unlike criminal proceedings, there is no requirement that the government provide attorneys for persons in immigration court proceedings who cannot afford one. If you have an attorney, the government will send all notices of hearings to him/her. You can also track your case through the EOIR Hotline. Call 1-800-898-7180 and follow the prompts.

If the IJ rules that you are not subject to removal (i.e., you win your case), the government is required to cancel the immigration bond. The person who posted it, regardless of directly with ICE, or indirectly through a surety agent, will be entitled to the return of his/her security. If the IJ awards you some form of relief from removal, the government may be required to cancel the bond. If, however, the IJ enters an order of removal, the government will at some later date seek to execute that order by making a surrender demand (Form I-340) to the person or company with whom it has a bond contract.

That demand will specify a date, time, and place for you to surrender into ICE custody. If you comply with this demand, the government must cancel the bond. If, however, you do not comply, the government will declare the bond to be breached and initiate an administrative process to collect the penal amount of the bond from the person or company with whom it has a bond contract. If that party is a surety agent, the agent will pay the penal amount and then execute on the security. Thus, if one of your relatives used his/her house as security, he/she could lose that house if you fail to surrender as demanded.

CAUTION: No one should rely on the above discussion in lieu of obtaining legal advice based on the specific facts of the individual case. It is merely a general summary of what someone in removal proceedings can expect.