If Government Has Given You a "Notice to Appear" in Immigration Court . . .

Posted on August 21th, 2018 Brian SatherThis post is about what to expect when the U.S. Department of Homeland Security has given you a document that calls itself a "Notice to Appear" that discusses "removal proceedings." We offer this article for your general information only, and not to substitute for the advice of an attorney who knows your particular case. Immigration law is extremely complex, people with lawyers fare far better in Immigration Court than do unrepresented people, and you should retain a lawyer as soon as possible. Consider only licensed attorneys who devote their practice to the field of immigration law.

A "Notice to Appear" (or "NTA") means that the Department of Homeland Security ("DHS") wants to deport you, but that they think they cannot lawfully do so without the order of an Immigration Judge, which they intend to seek during removal proceedings. Near the top of the NTA is a list of "allegations" - things that DHS claims are true about you. Next is one or more "charges," the provisions of law that DHS thinks justifies or requires your deportation. Near the bottom of the first page of the NTA is the address of the Immigration Court where DHS intends to file the NTA, and a space for DHS to specify when you are supposed to appear in court.

The Immigration Court ("the court") is part of the U.S. Department of Justice, and is separate from the DHS. After you get an NTA, the court will send you a "Notice of Hearing", specifying where and when you must appear for your first hearing. People who miss a hearing can be deported without even the opportunity to defend themselves. For this reason, and because Immigration Courts often cancel and reschedule hearings, sometimes moving hearings up to an earlier date, it is very important that you make sure that the Immigration Court always has your current mailing address. Often, people who miss a hearing because they did not know about it get deported anyway, because the law puts the burden on them to take reasonable measures to ensure that they receive mail from the Immigration Court. It also is a good idea, once you have an NTA, to periodically call the Immigration Court's automated telephone information system, just in case you miss a Notice of Hearing. That system will tell you, among other things, the date of your next hearing. (The phone number is 1.800.898.7180.)

The purpose of Immigration Court hearings is for you to present your side and DHS to present its side regarding the NTA's allegations and charges, and then for the Immigration Judge ("IJ") to make one or more of these decisions: (1) whether DHS, if it wants to, can keep you in jail until the case is over; (2) whether the law requires your deportation; and (3) whether to grant you "relief" from deportation, which can mean keeping a green card if you already have one, getting a green card if you do not have one, or getting "asylum" protection, among other forms of relief. ("Green card" is an informal term denoting lawful permanent resident status.)

Your first hearing will be a relatively short event called a "Master Calendar" hearing ("MC"). (If DHS has you in jail, then one or more "bond hearings" will precede the MC, to determine whether DHS is allowed to keep you, and, if so, whether the IJ can and wishes to order your release on bond.) Depending on many factors, you might have more than one MC, even several. Just for example, the IJ might grant a continuance following your first MC if you ask for time to find a lawyer. (You do have the right to be represented in removal proceedings, although the government will not pay for your representation.) Eventually, whether at the first MC or at a later MC, the IJ will require you to "plead" - to say whether you admit or deny the NTA's allegations, and whether you contest or concede the charges. You also will have to tell the IJ what relief you seek in the event that the IJ determines that he or she must order your deportation in the absence of such relief.

Following pleadings, the IJ may schedule an "Individual Hearing." An Individual Hearing is a longer event than an MC. The IJ will schedule an IH if you are denying one or more allegations or contesting one or more charges and a trial is required to enable the IJ to resolve these issues. The IJ also will schedule a trial to enable him or her to decide whether to grant you any relief for which you have applied and appear to be eligible.
Again, the law governing removal proceedings is extremely complex, and removal proceedings can take many twists and turns, going on for years. The foregoing explanation, therefore, is necessarily highly superficial and radically incomplete, intended only to help orient you before you are able to find a good lawyer. We will not hesitate, however, to give you one piece of advice: if you do not want to give up, don't. Do not be intimidated by the DHS or even the IJ. And do not assume that your case is hopeless, regardless of the weaknesses that you perceive in your case and regardless of what you are told by people who are not your lawyer. People do beat their NTA, all the time.

The guidance in this blog is only general in nature and should not be construed as legal advice.