The Merits Hearing is typically the most important hearing in any non-citizen's removal proceedings. It is where the non-citizen will get the chance to present arguments before an Immigration Judge (IJ) and defend his or her right to remain in the United States. It is also where the IJ will make the final decision to either allow the non-citizen to remain in the U.S. or be deported to his or her designated country.
Before we explain exactly what happens in a Merits Hearing (also called an “Individual Hearing”), let’s explain what it is and how, if you have found yourself facing such a proceeding, you got there in the first place.
Prior to your Merits Hearing, you will have appeared before the IJ for one or more so-called "Master Calendar" hearings. There, the IJ will have read the Notice to Appear (NTA) out loud and had you (or your attorney) state whether you admit or deny each allegation and whether you concede or refute the charge(s) of removability or inadmissibility.
Once the allegations are agreed upon by all parties and the IJ decided there was enough evidence to find you removable or inadmissible as charged (i.e. there was enough to sustain the charges), the IJ would have asked what form of relief from removal you would be seeking.
Even though the IJ decided that you are removable as charged in the NTA, you will still be able to remain legally in the U.S. if you can present a valid defense to the charges. Common defenses include asylum, cancellation of removal, marriage to a U.S. citizen, or at least prosecutorial discretion. Please see Nolo’s articles on “Immigration Court Defenses: Avoid Deportation” for further information.
By the time of the Merits Hearing, you should have chosen what relief you are eligible to apply for. The IJ should have told you to submit your application for relief with all supporting documents to the court (and send a copy to the Department of Homeland Security (DHS)) by a certain date.
You will need to have submitted all forms of relief, supporting documents, and paid all application fees by the date set by the IJ, or your relief applications will be deemed abandoned and the IJ will order you removed from the United States before you ever get to your Merits Hearing.
The IJ may give you a “call-up date” to allow you to submit the application and documents by mail or to the clerk’s office – this is the date by which everything must be submitted. Or, the IJ may schedule you for another Master Calendar hearing for you to personally appear before the IJ and file the application and supporting documents in person.
When the IJ gives you a call-up date, he or she will also schedule your Merits Hearing. If the IJ set a second Master hearing, he or she will schedule your Merits Hearing then.
As described above, you should by the time of the hearing have claimed some sort of defense to removal. You will now be expected to prepare and present your arguments for why this defense should apply to you and should allow you to stay in the United States. Sitting back and waiting for the judge to ask you questions will not likely result in a successful outcome.
An attorney for the U.S. government will also present a case, against you. That attorney will be allowed to cross examine you and any witnesses you might bring.
A Merits Hearing can last anywhere from a few hours to many days (but not all in a row). If you cannot finish the hearing on the first date that it is set for, the judge will schedule a continued hearing at a later date. Because it is a lengthy and complicated procedure, it’s best to have the help of an experienced immigration attorney.
You will be able to bring witnesses to testify on your behalf at the Merits Hearing. Testimony from close family members, friends, and coworkers can, depending on the type of case you are presenting, be a powerful tool to support your relief from removal.
If you are planning on having witnesses appear at your Merits Hearing, you must give written notice to the court and the DHS naming who will be testifying. The notice must include the witnesses’ full name, whether they are a U.S. citizen or lawful permanent resident (LPR), their relation to you (the Respondent), and whether they will be testifying in English or another language. If any of your witnesses cannot speak and understand English, the court will provide an interpreter.
You must send this notice to the court at least 15 days prior to your hearing date. The people who have agreed to be witnesses in your case will need to appear in court on the day and time of your merits hearing. They should know why you are in removal proceedings and be prepared to answer questions from you (or your attorney), from the DHS, and from the IJ.
You and your witnesses will arrive at the immigration courthouse on time for the scheduled hearing. Any witnesses you have may be asked to wait in the lobby or waiting room until the IJ is ready to hear their testimony.
Once the IJ arrives, he or she will begin the proceedings by reviewing all documents that were submitted to the record – including any applications you submitted and all your supporting documents. The IJ will then ask whether either you or the government attorney need to make any additional filings or corrections.
After the record is complete, the IJ will ask you, the Respondent, to take a seat on the witness stand, where you will be sworn in. If you have an attorney, your attorney will then start to ask you questions and you will respond. During this questioning, the IJ may interrupt to ask questions or to seek clarification.
Once your attorney has completed his or her line of questioning, the DHS attorney will ask you questions. The IJ may also interrupt to ask questions or seek clarification.
After the DHS attorney has completed the questions, your attorney will be able to ask follow-up questions if needed. The IJ may ask you more questions as well.
If you brought witnesses to testify on your behalf and the IJ wants to hear from them, they will be brought in one at a time and questioned in the same way you were questioned before (by both attorneys).
Once all witness testimony has been heard, the IJ will give you or your attorney an opportunity to make any final statements regarding your eligibility for the relief you are seeking and why the relief should be granted. The IJ will also give the DHS an opportunity to make a statement expressing the agency’s views on whether it thinks your application should be granted or denied.
After the final statements at your Merits Hearing, the IJ will issue a decision on your case. If you disagree with the decision, you will (in most types of cases) be allowed to appeal it by submitting an appeal within 30 days to the Board of Immigration Appeals (B.I.A.).
It is probably not a good idea to waive (give up) your right to appeal if you do not get the result you hoped for. Many cases are won upon appeal -- if not at the B.I.A., then later after review by a federal court.
If the DHS didn’t get the results it wanted, it too, will be allowed to appeal the IJ’s decision with 30 days. If both parties are happy with the result and waive their right to appeal, the IJ’s decision becomes final.