Immigration Court: What to Expect

Immigration court proceedings are initiated when DHS files a Notice to Appear (NTA, Form I 862) with the immigration court that has jurisdiction over the respondent's location. The NTA lists the factual allegations against the respondent and the charges of removability. Common bases for NTA issuance include: overstaying a nonimmigrant visa, entering without inspection, criminal convictions that trigger deportability grounds, and asylum referrals from USCIS when an affirmative asylum application is denied. The NTA must be personally served on the respondent. Under Pereira v. Sessions, 138 S.Ct. 2105 (2018), an NTA that does not include the date and time of the hearing may be defective for purposes of triggering the stop time rule for cancellation of removal. However, courts have split on the broader implications of defective NTAs. After the NTA is filed, the immigration court schedules a master calendar hearing, which is the first appearance. The time between NTA filing and first hearing varies enormously by court location: some courts schedule initial hearings within weeks, while courts with severe backlogs may not schedule the first hearing for one to three years. Detained cases are prioritized and typically move more quickly through the system.

A master calendar hearing is a short procedural appearance, typically lasting 10 to 30 minutes, before an immigration judge. Multiple cases are scheduled during the same session. At the master calendar hearing, the judge confirms the respondent's identity, verifies service of the NTA, takes pleadings (the respondent admits or denies the factual allegations and concedes or contests removability), and identifies what forms of relief from removal the respondent intends to pursue. The respondent has the right to be represented by counsel at their own expense (INA section 240(b)(4)(A)), but the government is not required to provide free counsel. If the respondent needs time to find an attorney, the judge will typically grant one or two continuances. Respondents who appear without counsel and indicate they are seeking representation are generally given 30 to 60 days. Common outcomes of a master calendar hearing include: the case is continued for the respondent to obtain counsel; the respondent files applications for relief (asylum, cancellation of removal, adjustment of status, voluntary departure); the judge sets a deadline for filing applications; the judge schedules an individual merits hearing; or if the respondent concedes removability and does not seek relief, the judge may enter a removal order at the master calendar hearing.

Respondents in removal proceedings may apply for several forms of relief, depending on their individual circumstances: Asylum (INA section 208): available to individuals who have been persecuted or fear persecution based on race, religion, nationality, political opinion, or membership in a particular social group. Defensive asylum is filed in immigration court on Form I 589. Withholding of Removal (INA section 241(b)(3)): requires a higher standard of proof than asylum (clear probability rather than well founded fear) but provides protection from removal to the specific country where persecution would occur. It does not lead to permanent resident status or a green card. Convention Against Torture (CAT) Protection (8 CFR 1208.16 and 1208.18): available to individuals who can demonstrate it is more likely than not that they would be tortured by or with the acquiescence of a government official in the country of removal. Cancellation of Removal (INA section 240A): available to certain long term residents with qualifying relationships. Non LPR cancellation requires 10 years of continuous physical presence and exceptional and extremely unusual hardship to a qualifying relative. LPR cancellation requires 7 years of continuous residence and 5 years as an LPR. Adjustment of Status (INA section 245): if the respondent has an approved or pending immigrant visa petition and a visa number is available, they may apply for adjustment in removal proceedings. Voluntary Departure (INA section 240B): allows the respondent to leave the United States at their own expense within a specified period, avoiding a formal removal order and its consequences (10 year bar on reentry).