What to Expect During Your Individual Deportation (Removal) Hearing

The individual or "merits hearing is typically the most important hearing in any non-citizen's removal proceedings. It is where the foreign-born person will get the chance to present arguments before an Immigration Judge (IJ) and defend their 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 their designated country. Here, we'll discuss what the court experience will involve, and how to protect your interests.

How Did You End Up in U.S. Immigration Court?

This whole process probably got started because you were either arrested by Immigration and Customs Enforcement (ICE) for having been in the U.S. without documents or having worked without permission or committed a crime; or you were referred by USCIS, perhaps after having submitted an application for asylum, adjustment of status, or something else, which was denied.

By now, you will have also appeared before the immigration judge for one or more so-called "Master Calendar" hearings. (The exception would be if your lawyer took care of the paperwork required without an actual in-person hearing, as was possible during the COVID-19 pandemic.) These are basic procedural/scheduling hearings, with potentially many other people in the room along with you.

Does Being in Deportation Proceedings Always Result in Removal From the U.S.?

Even though the IJ initially decided that you appear to be removable as charged by the U.S. government, this isn't the time to give up and assume you will actually be deported. You still might be able to turn things around and remain legally in the U.S., if you can present a valid defense to the charges at your hearing(s). Common defenses include asylum, cancellation of removal, and marriage to a U.S. citizen. See Immigration Court Defenses: Avoid Deportation for further information.

When Must I Submit Paperwork Before the Individual Removal Hearing?

Before the individual hearing, you should have chosen what relief you will request. The IJ should have told you to submit your application with all supporting documents to the immigration court (and to send a copy to the Department of Homeland Security (DHS)) by a certain date. If you fail to do so, and to pay all application fees by that date set, your relief applications will be deemed abandoned and the IJ will order you removed from the U.S. before you even get to your Merits Hearing.

The IJ might give you a "call-up date," to allow you to submit the application and documents by mail or to the clerk's office. Or, the IJ may schedule you for another Master Calendar hearing for you to personally appear and file the application and supporting documents in person. When giving a call-up date, the IJ will also schedule your individual hearing. If the IJ set a second Master Calendar hearing, the IJ will schedule your individual hearing at that time.

Non-Citizen's Role at an Individual Hearing in Removal Proceedings

You will be expected to prepare and present arguments for why the defense to deportation you have chosen should apply to you and allow you to stay in the United States. Don't just sit back and wait for the judge to ask you questions; this will not likely lead to success.

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.

An individual 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 it's set for, the judge will schedule a continued hearing for a later date. Because it is a lengthy and complicated procedure, it's best to have the help of an experienced immigration attorney.

What Happens, Step by Step, at an Individual Hearing in Removal Proceedings

If appearing in person, you and your witnesses should arrive at the immigration courthouse well in 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.

The IJ will begin the proceedings by reviewing all documents that were submitted to the record, including any applications you submitted. The IJ will then ask whether either you or the government attorney need to make additional filings or corrections.

After the record is complete, the IJ will ask you, called the "Respondent," to take a seat on the witness stand. There, you will be sworn in (raise your right hand and promise to tell the truth).

If you have an attorney, your attorney will 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 the intended 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 then, 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 (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 it 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.

The IJ's Decision

After the final statements at your hearing, the IJ will issue a decision on your case, perhaps orally. Or, the IJ may choose to think about it, and issue a written decision later.

If you disagree with the IJ's decision, you will (in most types of cases) be allowed to appeal it within 30 days, in writing, 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 will "reserve appeal" and be allowed to file an appeal to the IJ's decision within 30 days. If both parties are happy with the result and waive their right to appeal, the IJ's decision becomes final.

What Are the Chances the DHS Attorney Will Actually File an Appeal After Reserving Appeal?

To reserve appeal basically means that the attorney wants the right to follow up within a certain time window, and file an appeal to the Board of Immigration Appeals—or at least to think about it. But the appeal might not happen after all. The DHS attorney could consider the matter, talk to a supervisor, evaluate whether it's worth the effort of convincing the B.I.A. to overturn the judge's grant, and eventually drop the matter (or not).

That means you will have to wait a bit to find out whether the judge's decision is truly final. The DHS attorney has 30 calendar days in which to actually file the appeal, which is done on Form EOIR-26, with a copy sent to you. "Calendar" days means exactly 30 days, counting weekends, not just business days.

Attorneys representing immigrants in different parts of the United States report different practices by DHS attorneys after the IJ grants a case. At some immigration courts, an DHS attorney who reserves an appeal almost always follows through with filing it. In others, the attorneys routinely reserve appeal then don't necessarily follow through. What the DHS attorney decides also depends greatly, of course, on the law and facts concerning your case.

What's Your Immigration Status If the Case Goes to Appeal?

If the DHS attorney does, indeed, file an actual appeal within the 30 days, then your grant of immigration status (such as asylum or cancellation of removal) will not be considered "final" and you will not be eligible for any of the benefits that come with that status. It could be a long wait before the B.I.A. makes its decision (which is done based on the paper record; you will not be expected to attend any more hearings).

Following Up After 30-Day Appeal Period

If 33 days (allowing for mailing time) have elapsed and you haven't received a copy of a notice of appeal, chances are the DHS attorney has not appealed the immigration judge's decision and the order is now final.

You would be wise to contact the DHS attorney's office directly to ask whether the government filed a B.I.A. appeal. You can also call the automated court case status hotline at 800-898-7180 to check whether an appeal has been filed. If so, the hotline will inform you that the Record of Proceedings was assembled and forwarded to the B.I.A.

If the required 30 days have gone by with no appeal, you can relax, and follow up on whatever benefits come with your newly granted or regained immigration status.

Getting Legal Help

When facing removal proceedings, it's well worth hiring an experienced U.S. immigration attorney. Although technically you can go it alone, you'll be facing a U.S. government attorney whose job it is to convince the IJ you should be deported, and who knows the most effective legal arguments for doing so. One also needs to comply with various non-intuitive procedural requirements in immigration court. This is not a good time to go it alone.