Court Decisions in Deportation and Removal Actions

Under the Immigration and Nationality Act ("INA"), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), "removal proceedings" are used by the U.S. government to deport non-U.S. citizens, "aliens" or "non-citizens", from the U.S. or to keep them from entering the country.

Usually, a hearing is held and an immigration judge (IJ) determines whether an alien is "inadmissible" or "deportable." How is that decision made? If you're allowed to stay in the U.S., there's no problem. But, what can you do if the IJ decides that you're deportable? There are some things you can do if an IJ decides against you.

The deportation and removal process is complicated, so it's critical that you understand the INA thoroughly, as well as court decisions that interpret the INA. Of course, if it's at all possible, it is often best to seek the advice of an experienced immigration law attorney if you're involved in a deportation action.

The IJ's Decision

At the hearing before the IJ, you and the Department of Homeland Security ("DHS") will give evidence as to why (or why not) you should be allowed to stay in the country, and not be deported. At the hearing, you'll be given the chance to do things like:

  • Give testimony, that is, answer questions asked by the IJ, DHS, and your attorney, if you have one
  • Have witnesses testify on your behalf, and ask questions of the witnesses presented by the DHS against you
  • Make an opening and closing argument where you try to convince the IJ to let you stay in the U.S.

At the end of the hearing, the IJ makes a decision. The decision might be oral, that is, the IJ makes an immediate decision and tells you right then and there whether you're going to be deported. Or, the IJ might write a decision, in which case you might not find out the decision for several days or weeks.

The IJ's decision on as to whether you're removable must be based only on the evidence produced at the hearing.

What Happens Next?

If the IJ allows you to stay in the U.S., the DHS can appeal the decision to the Board of Immigration Appeals ("BIA"). If the IJ decides against you, you have 30 days to file an appeal with the BIA. To file an appeal, a notice of appeal has to completed and filed with the BIA.

If the IJ ordered you to be deported, the filing of a notice of appeal with the BIA automatically stops the IJ's order from being enforced, that is, you can't be deported until after the BIA hears your appeal.

On an appeal, the BIA will review the IJ's decision for errors, that is, the BIA will look at your case to make sure the IJ made the right decision. The BIA can:

  • Dismiss the appeal, that is, "throw out" the appeal, and the BIA can do so with or without giving the reasons for dismissing it
  • Affirm the IJ's decision, that is, declare that the IJ's decision was correct. Again, the BIA can affirm the IJ's decision with or without giving reasons for affirming it, and
  • Remand your case to the IJ, that is, send it back to him or her, which is usually done when the IJ's decision is incomplete, such as when certain factual or legal matters were not addressed by IJ

If the BIA decides against you, you can file an appeal in the United States Court of Appeals for your area. If the BIA decides in your favor, the DHS cannot appeal.

The appeals process in U.S. federal courts can be complicated, so it's important that you understand the rules of the court in your area, or seek the help of an experienced attorney.

Options other than Appeals to the BIA

If the IJ (or the BIA, for that matter), decides against you, there are two motions that you can file:

  • A motion to reopen, which is used when new facts or evidence are discovered after the IJ's decision and the new facts and evidence could change the IJ's decision. Generally, a motion to reopen must be filed within 90 days after a final removal order has been made, but there are some exceptions, such as when your life or freedom would be threatened if you were returned to your native country
  • A motion to reopen, which is used when you think the IJ (or BIA) made a mistake in interpreting or applying the law to the facts of your case. This motion must be filed within 30 days after a final removal order has been made.

Generally, you can file only one motion to reopen and one motion to reconsider, and the filing of these motions usually will not automatically stop the enforcement of an order for removal, that is, you can be deported before your motion is heard and decided.

Questions for Your Attorney

  • I heard that a deportation hearing and decision could be done in less than a day. Is that true?
  • I forgot to bring some important evidence to my removal hearing, and the IJ refused to give me time to get it. Can he do that? Then he ordered that I be deported. Can I file a motion to reopen or reconsider?
  • My removal hearing was in California, and I want to appeal the IJ's decision to deport me, but the BIA is in Virginia. Do I have to travel to Virginia to make my appeal?
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