Jurisdiction 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, or "aliens," from the U.S., or to keep them from entering the country.

The entire removal process takes place almost entirely in federal administrative agencies, particularly the Department of Homeland Security ("DHS"), and the Executive Office for Immigration Review ("EOIR"), which is an office of the U.S. Department of Justice. But, there are times when the federal courts get involved in removal actions.

In order for an agency or court to get involved, however, it must have "jurisdiction," that is, it has to have the authority to decide what should happen to an alien. So, if you're involved in removal proceedings, it's a good idea to know when and how the various agencies and courts can decide if you should be deported.

First Actions

The removal process typically begins with the DHS issuing a "Notice to Appear" ("NTA") to a suspected illegal alien. The alien is required to show up at a specified immigration court. At that time, the DHS must establish the immigration court's jurisdiction, that is, it must prove that the alien is in fact a non-U.S. citizen.

If, at that time, the DHS can't show that you're indeed an alien then the immigration court has no jurisdiction and the removal action must end.

What If DHS Establishes Jurisdiction?

If the DHS established jurisdiction, the immigration judge (IJ) must decide whether you're "deportable," that is, whether you should be expelled from the U.S., or whether you're "inadmissible," that is, not eligible to enter the country. Once the IJ makes a decision, several bodies have jurisdiction when you (or the DHS) appeal, or challenge, the IJ's decision.

The Board of Immigration Appeals ("BIA") has jurisdiction over appeals taken by either you or the DHS after the IJ makes a decision in your removal action. In addition to direct appeals by you or the DHS, the BIA can take jurisdiction over your removal action through "certification." This is when the IJ asks the BIA to review the case.

Once the BIA decides your appeal, the various United States Courts of Appeals have jurisdiction if you want to appeal the BIA's decision, in most instances. In general, the courts of appeals have jurisdiction to review BIA decisions in deportation and removal actions unless the decision involved:

  • Waiver of inadmissibility for criminal grounds and waiver of inadmissibility for fraud or misrepresentation, which is when an alien is admissible but requests permission to enter the U.S. anyway
  • Cancellation of removal, which is when an IJ ends a removal action that has been brought against an alien and either grants the alien lawful permanent resident status or allows the alien to keep that status
  • Voluntary departure, which occurs when an alien decides to leave the U.S. voluntarily, rather than waiting for the completion of removal proceedings, or
  • Adjustment of status, which is when an alien is permitted to change his status to lawful permanent resident status

The court of appeals do not have jurisdiction over appeals by the DHS from a IJ's decision, so, if you appeal to the BIA and the BIA finds in your favor, the DHS can't appeal to the federal appellate courts.

The Supreme Court of the United States has jurisdiction next if either you or the DHS wants to challenge the ruling the U.S Court of Appeals.

The entire removal process in general, and the appeals process in particular, can be very complicated. The various agencies and courts have rules about when, where and how to file various papers and documents, and if you don't follow those rules, the agency or court might not hear your case. So, it's very important that you understand those rules, or get some help from an experienced immigration law attorney.

Questions for Your Attorney

  • I received a notice to appear, and I called the local DHS office and told them I married a U.S. citizen over I year ago. I was told that I had to come to the hearing anyway. Can they do that?
  • I moved from California to Colorado several months ago, and I just received a notice to appear, but the hearing was scheduled at a DHS office in California. Do I have to go to California?
  • 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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