May 6, 2020
Formal Removal Proceedings: An Introduction
The Fifth Amendment’s Due Process Clause confers
Master Calendar Hearings
substantive and procedural protections to all persons within
An alien will first appear before an IJ at a Master Calendar
the United States, including non-U.S. nationals (aliens) who
hearing. There the IJ is required to explain the alien’s
the federal government seeks to remove from the country.
rights, the charges against the alien, and the nature of the
Once an alien has “passed through our gates, even
proceedings. If the alien is unrepresented, the IJ must
illegally,” the Supreme Court has declared, the alien “may
provide a list of free or low-cost legal service providers and
be expelled only after proceedings conforming to traditional
give the alien an opportunity to find counsel (unless the
standards of fairness encompassed in due process of law.”
alien waives counsel and elects to proceed pro se). An
Shaughnessy v. Mezei, 345 U.S. 206 (1953).
interpreter might also be used to facilitate communication
in the hearing and other proceedings.
Against this backdrop, the Immigration and Nationality Act
(INA) and implementing regulations provide a framework
At the first or a subsequent Master Calendar hearing, the
for the Department of Homeland Security (DHS) to seek
alien is required to plead to the allegations and charges in
the removal of aliens from the United States. Aliens
the NTA, either admitting or denying them. The alien may
targeted for removal in the interior of the United States are
also submit an application for any relief from removal. In
typically placed in proceedings under INA § 240. These
the alternative, the alien may request the opportunity to
“formal” removal proceedings afford more robust
voluntarily depart the United States at his or her own
procedural protections than the expedited removal process
expense in lieu of removal proceedings (unless statutorily
under INA § 235, which applies to aliens apprehended at or
barred). If an alien files an application for relief, the IJ must
near the border who lack entry documents or have
schedule a “merits” hearing. An IJ may also schedule a
attempted to enter the country surreptitiously.
merits hearing to address any contested issues about the
alien’s removability.
Formal removal proceedings are conducted before an
immigration judge (IJ) within the Executive Office for
Bond Hearings
Immigration Review (EOIR). In these proceedings, the
DHS may generally detain an alien during the pendency of
alien has a right to counsel at his own expense, the right to
removal proceedings. If DHS opts to detain the alien, the
apply for available relief from removal (e.g., asylum), the
alien may request a bond hearing before an IJ. The IJ may
right to present testimony and evidence on his or her own
order the alien released on bond (in the amount of at least
behalf, and the right to administratively appeal an adverse
$1,500) or on the alien’s own recognizance subject to
decision to the Board of Immigration Appeals (BIA). As
certain conditions. If the IJ orders the alien detained, the
authorized by statute, the alien may also seek judicial
alien may appeal to the BIA. Neither statute nor regulations
review of a final order of removal.
provide for bond hearings for aliens subject to mandatory
detention under the INA (e.g., aliens who have committed
The process for initiating and conducting formal removal
certain crimes or engaged in terrorism). DHS has exclusive
proceedings is primarily governed by INA §§ 239 and 240,
authority over those aliens’ custody status.
implementing regulations found in 8 C.F.R. chapter V, and
EOIR’s Immigration Court Practice Manual.
Continuances and Change of Venue
An alien may request a continuance of proceedings,
Commencement of Formal Removal
including to seek more time to prepare for a merits hearing
Proceedings
or to pursue “collateral” relief from removal outside the
Formal removal proceedings begin with DHS filing a
removal proceedings (e.g., by filing a visa petition with
Notice to Appear (NTA) in immigration court. The NTA
DHS). An IJ generally has considerable discretion whether
sets forth the allegations and charges against an alien
to grant a continuance. In cases where an alien seeks a
believed to be subject to removal. The NTA must be served
continuance to pursue collateral relief, immigration
on the alien in person or, if personal service is not
authorities have required consideration, among other
practicable, mailed to the alien or the alien’s counsel of
factors, of the likelihood that the relief will be granted and
record. An NTA does not have to specify the time and date
will materially affect the outcome of the removal
of the alien’s removal proceedings in order to commence
proceedings. Matter of L-A-B-R-, 27 I. & N. Dec. 405
formal removal proceedings, so long as the alien later
(2018).
receives written notice of the hearing. See e.g., United
States v. Cortez, 930 F.3d 350 (4th Cir. 2019); Karingithi v.
In some cases an alien may change address while
Whitaker, 913 F.3d 1158 (9th Cir. 2019); Matter of
proceedings are pending. The alien may file a motion for
Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018).
change of venue to the immigration court that has
jurisdiction over the region where the alien resides. An IJ
may grant a change of venue only if DHS is given an
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Formal Removal Proceedings: An Introduction
opportunity to respond to the motion and the alien provides
on certain enumerated crimes. Additionally, no court has
a fixed street address where the alien may be reached.
jurisdiction to review certain discretionary denials of relief.
But courts retain jurisdiction to review constitutional claims
Consequences of Failure to Appear
or questions of law raised in a petition for review.
If an alien receives proper notice but fails to attend a
hearing, an IJ is required to order the alien removed in
Motions to Reopen and Reconsider
absentia if DHS establishes that the alien is removable as
An alien with a final order of removal may move to reopen
charged in the NTA. But the order of removal may be
proceedings before the BIA. Typically, a motion to reopen
rescinded if the alien (1) files a motion to reopen within 180
seeks relief based on new, previously unavailable evidence.
days of the order and shows that the failure to appear was
The motion must come with an application for relief and
because of “exceptional circumstances” (e.g., serious
supporting documents. Generally, an alien may file only
illness); or (2) files a motion to reopen at any time and
one motion to reopen, filed within 90 days of the BIA’s
shows that the alien did not receive notice of the hearing, or
decision. But exceptions exist, including when the motion is
that the alien was in custody and could not appear.
made to apply for asylum based on changed conditions in
the alien’s country of nationality, or when DHS agrees to
Merits Hearing and IJ’s Decision
join the motion. Some courts have held that the time and/or
In the merits hearing an alien may present testimony and
numerical limitations may be waived (“equitably tolled”) in
evidence in support of an application for relief. The IJ may
some situations, such as if the alien was defrauded or
direct the parties to present opening or closing statements.
received ineffective assistance of counsel, if the alien
The alien’s counsel (or the IJ if the alien is unrepresented)
exercised due diligence in filing the motion. See e.g.,
may conduct direct examination of the alien, and DHS
Iturribarria v. INS, 321 F.3d 889 (9th Cir. 2003); Iavorski
counsel conducts cross-examination. The IJ may question
v. INS, 232 F.3d 124 (2d Cir. 2000).
the alien and any witnesses.
An alien subject to a final order of removal may also move
The IJ then issues an oral or written decision granting or
to reconsider with the BIA. The motion must be filed within
denying the alien’s application for relief. The decision must
30 days of the BIA’s decision and specify the alleged errors
also include a finding as to the alien’s removability. If the IJ
in that decision. The alien generally may file one motion to
denies the application, the IJ must issue an order of removal
reconsider. But some courts have held that the time and
(but the alien may request an opportunity to voluntarily
numerical limitations on motions to reconsider may be
depart at his or her own expense in lieu of removal, unless
equitably tolled (e.g., because of ineffective assistance of
ineligible). If the IJ grants the alien’s application for relief,
counsel). See e.g., Iturribarria, 321 F.3d at 897. If the BIA
or otherwise concludes the alien is not removable as
denies a motion to reopen or reconsider, the alien generally
charged, the alien will not be subject to removal.
may seek judicial review of that decision.
Appeal to the BIA
The BIA also may reopen or reconsider a case in which it
Both the alien and DHS may appeal an IJ’s decision to the
has rendered a decision on its own motion (“sua sponte”).
BIA. The Notice of Appeal must be filed within 30 days of
The decision to reopen or reconsider sua sponte is
the IJ’s decision. Absent an appeal, the IJ’s decision
discretionary and generally not subject to judicial review.
becomes administratively final.
An alien who has not appealed to the BIA may move to
Generally, following the Notice of Appeal, the BIA will
reopen or reconsider an order of removal before the IJ
order the parties to submit briefs in support of and against
(subject to time and numerical limitations). But if the alien
the appeal. The BIA may summarily dismiss an appeal,
already appealed and the BIA issued a decision, the alien
such as when the appealing party fails to specify the reasons
must file the motion with the BIA. And if the alien files the
for the appeal or submits an untimely appeal. Absent
motion while an appeal to the BIA is pending, the BIA may
summary dismissal, a single BIA member normally will
treat it as a motion to remand the case to the IJ for further
issue a decision on the merits. The BIA member may affirm
proceedings, and consolidate it with the appeal for decision.
the IJ’s decision without opinion if the appeal raises no
substantial legal or factual issues, or raises issues controlled
Attorney General (AG) Certification
by legal precedent. Otherwise, the BIA member issues an
The AG has ultimate authority over administrating
opinion. But the BIA member may designate the case for a
agencies’ interpretation and application of federal
three-member panel decision in some circumstances (e.g.,
immigration laws, including in formal removal cases. DOJ
to resolve inconsistent IJ rulings or to create precedent).
regulations require the BIA to certify cases for AG review
when (1) the AG directs the BIA to refer a specific case to
Judicial Review of Orders of Removal
him for review; (2) either the Chair or a majority of the BIA
If the BIA affirms an IJ’s order of removal, that order
believes the case should be referred; or (3) the Secretary of
becomes administratively final. An alien may seek judicial
DHS or certain authorized DHS officials refer the case to
review of a final order of removal by petitioning for review
the AG. The AG thus has considerable authority to review
in the judicial circuit in which the immigration court
BIA decisions and issue superseding rulings.
proceedings were completed. The petition must be filed
within 30 days of the BIA’s decision. But there are
Hillel R. Smith, Legislative Attorney
limitations to judicial review. For instance, no court may
review a final order against an alien found removable based
IF11536
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Formal Removal Proceedings: An Introduction


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https://crsreports.congress.gov | IF11536 · VERSION 1 · NEW

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