While immigration court proceedings can seem highly technical and confusing, there is definitely a method underlying the “madness.” This article will walk you through the timeline for typical immigration court proceedings, give you pointers on what to expect, and explain when a final decision is likely.
Remember, however, that removal (deportation) cases almost always hinge on nuances of the law and the specifics of the particular case. There is no “typical” immigration court case, and many cases take years to reach a resolution. Consult a licensed immigration attorney right away if you face immigration court proceedings.
WARNING: COVID-19 policies and procedures may alter what is described below in the short-term. All immigration courts in the U.S. were closed for approximately three months, causing substantial delays in processing times. As courts begin to reopen across the U.S., it remains to be seen exactly how process and procedure will be modified in response to social distancing concerns. Information will be updated accordingly as it becomes available.
The Executive Office for Immigration Review (EOIR) runs the immigration courts. There are over 60 immigration courts throughout the United States. Your case will be heard in the court that has jurisdiction based on where you live.
Each immigration court has one or more immigration judges (IJ). Your case will be heard by an immigration judge, even if it takes place over a series of different days. You might not have the same judge at every hearing you attend, however. For example, sometimes judges retire, go on temporary detail, move permanently to another jurisdiction, or are simply out on the day of your hearing. Then your case could get reassigned to another IJ.
Immigration removal proceedings happen in roughly two stages: initial hearings, known as “master calendar hearings” and hearings focused on you personally, known as “individual hearings” or sometimes “merit hearings.”
The proceedings begin when the chief counsel’s office of U.S. Immigration and Customs Enforcement (ICE) files a document called a “Notice to Appear,” or “NTA” for short. The NTA is a charging document that formally accuses a person of having entered without authorization, being present in the U.S. without authorization, or being deportable for some specific reason. An ICE lawyer will be prosecuting the case against you in immigration court.
The NTA is important. Not only does it state the legal reasons why U.S. immigration authorities believe you should be removed (deported) from the United States, but it also puts you on notice that you will be scheduled for immigration proceedings in court.
If you have received an NTA, you are called the “respondent.” In the past, the NTA itself would notify respondents of their first scheduled court hearing. Today, with immigration courts facing busy caseloads, courts often send hearing notices separately from NTAs. It's very important, and your responsibility, to ensure that the court has your correct mailing address. The mail is the primary way that you'll be notified of the time, date, and address of your hearing(s).
Many people wait months or even years between receiving an NTA and getting their first hearing notice. If you have been detained by immigration authorities, the immigration courts take care to schedule your first hearing and send a hearing notice as soon as possible.
Carefully note the date and time of your first hearing! If you miss it, or any hearing, you could be ordered removed from the United States 'in absentia' and give up the right to apply for future immigration benefits.
The scheduling of your first hearing will depend on how busy the court is. In recent years, most immigration courts have been extremely busy—there are a lot of people in removal proceedings and not enough judges to hear their cases. Depending on what court you will go to and how busy that court is, you might wait a few months or a few years.
If you are being detained by immigration authorities, things will move more quickly. The immigration courts schedule hearings as soon as possible, typically within a few weeks, or a few months at most.
Sometimes people are in immigration court for reasons other than removal proceedings. For example, if you were detained at the U.S. border and asked for asylum, and an asylum officer determined that you don’t have a good possibility of qualifying for asylum, you can ask that an immigration judge review that asylum officer’s determination. These type of immigration proceedings are usually handled in a single hearing and are completed much more quickly than removal proceedings.
Your first hearing in removal proceedings is called a “master calendar hearing,” or simply “MCH.” The MCH is typically very short, lasting approximately 15 minutes or less. But you might have to wait in line for your 15 minutes. Many other people are normally scheduled to have their hearings at the same time, and everyone is expected to wait in the courtroom until their name is called. (These procedures might, however, change in response to the COVID-19 pandemic.)
Although the MCH is short, issues reviewed there are important to your case. You and the ICE attorney can address any initial issues. For example, you could be seeking a relatively minor request to change venue to another court location if you live somewhere far from the court. You could also make a serious challenge against the initial accusations made in the NTA, to try to stop proceedings entirely. The MCH is also usually when you file the application for relief that you are seeking before the court along with supporting evidence for your case.
Immigration judges have the authority to “continue” (reschedule for a later date) proceedings if certain issues need time to resolve. For example, they're usually willing to allow people extra time to try to retain an attorney. In some cases, the respondent might have a pending immigrant petition, which might provide relief from the removal proceedings; IJs are sometimes willing to allow time for these petitions to complete processing.
Your case could be continued for a short time or a long time (years even), depending on the underlying reasons for the continuance and the dates the court have available. Some courts have “status dockets” for people who have a petition or application pending with U.S. Citizenship and Immigration Services (USCIS). These allow people to check in with the court regularly while USCIS decides their application or petition.
If your case contains no further initial issues to review, and if you, the ICE attorney, and the court view your case as ready to proceed, the court will schedule your individual hearing. You will receive a written notice of its date, time, and place from the court clerk at the end of your master calendar hearing.
As with any time you need to come to immigration court, you could be waiting months or even years for your individual hearing, depending on how busy the court is.
Individual hearings are what they sound like: The court focuses on your individual case to determine whether you are eligible for any forms of relief from removal and, ultimately, whether you will be allowed to stay in the U.S. or not.
Because individual hearings give full attention to a specific respondent’s case, they typically take much longer than the 15-minute master calendar hearings. The immigration court will schedule the individual hearing for a block of time ranging from one to four hours.
During the hearing, the court will hear testimony and review evidence presented by you and the ICE attorney. You and the ICE attorney will be given opportunities to make final legal arguments as to why you should or should not be removed from the United States.
In some cases, the testimony and evidence presentation can take much longer than four hours, and other related issues can pop up. In such cases, the court is required to continue the individual hearing to a later date. Of course, such a rescheduling is subject to the court’s schedule and to the availability of the participants. If your case requires a large amount of evidence and testimony, your individual hearing might take years to resolve.
Once all of the evidence has been presented, witnesses have testified, and the legal arguments have been made, the IJ will decide whether you should be removed from the United States. In most cases, the judge will state the decision immediately in open court.
In rare cases, the judge will choose to continue proceedings in order to craft a written decision. There are certain types of cases (specifically, EOIR-42B Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents) where only a limited number of visas are available per fiscal year and an IJ cannot make a decision until the required visa is available; the IJ might then indicate what he or she plans to do with your case but cannot officially make a decision until a visa is available, which could also be several more years after your hearing is completed.
In either case, your hearings will have reached an end. However, this is not necessarily the end of your immigration proceedings.
Either you or the government can choose to challenge an immigration judge’s decision. This can be done through a motion to reopen or a motion to reconsider made to the immigration court, or through an appeal directly to the Board of Immigration Appeals (B.I.A.).
Motions to reopen a case are normally filed when one or both of the parties to a case have new facts to present that were not previously available but are relevant to the case. A motion to reopen must usually be filed within 90 days of an immigration judge’s final decision, but exceptions do exist.
Motions to reconsider are sought usually when either party believes that the court interpreted the law incorrectly. Motions to reconsider must usually be filed within 30 days of the court’s decision, but, again, exceptions can apply.
You may also lodge an appeal directly with the B.I.A., so long as you file it within 30 days of the court’s decision. The B.I.A. is a body of people within the EOIR that reviews decisions of the immigration courts. B.I.A. appeals can take anywhere from several months to several years to be completed, due to the backlog of cases currently in the system.
If you receive an unfavorable decision in your case and want to fight on, or if the government seeks to appeal a decision in your favor, you could be facing six months or more of time added to your case. There are also possible routes to appeal B.I.A. decisions through the federal appellate courts, which could add considerable time and expense to your case. Definitely consult an immigration attorney if you are considering the long appeals process.