Immigration courts are hearings held by an immigration judge for people who have been formally charged with violating the nation’s deportation laws. They are part of the Executive Office for Immigration Review within the Department of Justice.
ICE attorneys will cross-examine your client vigorously. You must prepare your client for this, helping them to formulate truthful explanations that damage their case as little as possible.
Asylum
When someone seeks asylum in the United States, they must submit a case to an immigration judge. Once the person has gone through an interview with an asylum officer and been determined to have a credible fear of persecution or torture in their home country, they are referred to immigration court. They must then prove to the judge that they qualify for a form of protection called “withholding of removal” from deportation.
The immigration judge (“IJ”) will ask questions during the hearing about the person’s experience. It is important for the IJ to listen carefully and not to interrupt. The IJ will also make note of any inconsistencies between testimony and earlier submissions (such as statements given to a DHS officer or from a credible fear interview).
Many judges require a lawyer to file a pre-hearing memorandum or an opening statement, which is a good opportunity to cite case law that supports the client’s claim. Some judges allow the attorney to ask for an adjournment of the hearing date so that they can get ready, but this will stop the clock on accruing the 180 days needed to apply for employment authorization.
Removal
The government can try to remove noncitizens from the United States through removal proceedings. These are contested hearings before an immigration judge (IJ). The process begins when DHS files a document called a Notice to Appear that lists the charges and allegations against a person, known as the respondent.
At a removal hearing, the government must prove that the noncitizen is deportable. The respondent may choose to apply for some form of relief from removal during the hearings. The judge will decide whether to grant relief from removal and, if so, what kind of relief.
A noncitizen in removal proceedings may post a bond to avoid being removed from the country before his or her case is decided. A noncitizen in removal proceedings can seek a stay to delay his or her removal while pursuing appeals or motions to reopen a court’s decision or for significant personal circumstances. Hearings are generally open to the public, though noncitizens can request that their hearings be closed.
Filing a Petition
Immigration court hearings are held to determine whether an immigrant is eligible for a visa or green card. The parties present evidence and arguments to the judge, who makes a decision based on applicable laws and regulations.
In a case in which an immigrant seeks asylum or refugee status, the immigration judge will evaluate whether the person’s claim is credible. Generally, the evidence submitted must show that the applicant is at risk of persecution in their country of origin. The immigration judge is particularly concerned about evidence that the applicant may be involved in gangs, organized crime, or domestic violence.
During a hearing, the judge will also review other factors that contribute to an individual’s ability to stay in the United States. Individuals who are not satisfied with the BIA’s decision can file an appeal with the federal court of appeals in their jurisdiction. The appeal must be filed within 30 days of the BIA’s decision.
Reopening a Case
If the immigration judge’s final decision in your case is unfavorable, you may file a motion to reopen. The motion must be filed within 90 days of the date of the final decision. The grounds for reopening include extraordinary circumstances, ineffective assistance of counsel, or failure to receive the notice of hearing.
The BIA may not abuse its discretion in denying a motion to reopen based on the facts presented. However, it is not necessary to expressly refute each piece of evidence submitted. See Silva v. INS, 2 F.3d 823, 828 (9th Cir. 2021) (holding that the BIA need not address every argument and does not abuse its discretion when it fails to do so);
It is important to note that filing a motion to reopen does not stop your removal proceedings. The reopening of your case may only result in the termination of your removal proceeding or an order of permanent closure. Nonetheless, the reopening of a case can be an important tool to avoid deportation.
