The individual or "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.
IMPORTANT COVID-19 NOTE: The coronavirus pandemic is requiring U.S. immigration courts (EOIR) to adjust many of the practices described below. At the least, for in-person court appearances, you can expect to be required to wear a mask and observe social distancing for the duration of the pandemic. In addition, the EOIR is encouraging IJs to avoid in-person hearings by conducting them via video-conference or telephone. If your lawyer and the government lawyer can come to an agreement on your case, you might not even need to attend a hearing at all. If at all possible, hire a lawyer to deal with such issues and procedural challenges. See the EOIR's June 2020 memo for more information.
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 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 became possible during the COVID-19 pandemic.) These are basic procedural/scheduling hearings, with potentially many other people in the room along with you.
Even though the IJ decided that you appear to be removable as charged by the U.S. government, you will 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, and marriage to a U.S. citizen. See Immigration Court Defenses: Avoid Deportation for further information.
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 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 may 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 the IJ gives you a call-up date, he or she will also schedule your individual hearing. If the IJ set a second Master Calendar hearing, he or she will schedule your individual hearing then.
You will be expected to prepare and present arguments for why the defense 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.
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.
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. 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 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 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.
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.