Formal Removal Proceedings: An Introduction

Formal Removal Proceedings: An Introduction

Updated June 9, 2021
Formal Removal Proceedings: An Introduction
The Fifth Amendment’s Due Process Clause confers
establishing eligibility for cancellation of removal. Niz-
substantive and procedural protections to all persons within
Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v.
the United States, including non-U.S. nationals (aliens, as
Sessions, 138 S. Ct. 2105 (2018).
described in statute) whom the federal government seeks to
remove. Once an alien has “passed through our gates, even
Master Calendar Hearings
illegally,” the Supreme Court has declared, the alien “may
An alien will first appear before an IJ at a Master Calendar
be expelled only after proceedings conforming to traditional
hearing. There, the IJ is required to explain the alien’s
standards of fairness encompassed in due process of law.”
rights, the charges against the alien, and the nature of the
Shaughnessy v. Mezei, 345 U.S. 206 (1953).
proceedings. If the alien is unrepresented, the IJ must
provide a list of free or low-cost legal service providers and
Against this backdrop, the Immigration and Nationality Act
give the alien an opportunity to find counsel (unless the
(INA) and implementing regulations provide a framework
alien waives counsel and elects to proceed pro se). An
for the Department of Homeland Security (DHS) to seek
interpreter might also be used to facilitate communication
the removal of aliens from the United States. Aliens
in the hearing and other proceedings.
targeted for removal in the interior of the United States are
typically placed in proceedings under INA § 240. These
At the first or a subsequent Master Calendar hearing, the
“formal” removal proceedings afford more robust
alien is required to plead to the allegations and charges in
procedural protections than the expedited removal process
the NTA, either admitting or denying them (if the alien is
under INA § 235, which applies to aliens apprehended at or
represented and not detained, the alien may file written
near the border who lack entry documents or have
responses instead). The alien may also submit an
attempted to enter the country surreptitiously.
application for relief from removal. In the alternative, the
alien may request the opportunity to voluntarily depart the
Formal removal proceedings are conducted before an
United States at his own expense in lieu of removal
immigration judge (IJ) within the Executive Office for
proceedings (unless statutorily barred). If an alien files an
Immigration Review (EOIR). In these proceedings, the
application for relief, the IJ must schedule a “merits”
alien has a right to counsel at his own expense, the right to
hearing. An IJ may also schedule a merits hearing to
apply for available relief from removal (e.g., asylum), the
address any contested issues about the alien’s removability.
right to present testimony and evidence on his own behalf,
and the right to administratively appeal an adverse decision
Bond Hearings
to the Board of Immigration Appeals (BIA). As authorized
DHS may generally detain an alien during the pendency of
by statute, the alien may also seek judicial review of a final
removal proceedings. If DHS opts to detain the alien, the
order of removal. (For a visual illustration of this process,
alien may request a bond hearing before an IJ. The IJ may
see CRS Infographic IG10022, Immigration Court
order the alien released on bond (in the amount of at least
Proceedings: Process and Data, by Hillel R. Smith and
$1,500) or on the alien’s own recognizance subject to
Holly Straut-Eppsteiner.)
certain conditions. If the IJ orders the alien detained, the
alien may appeal to the BIA. Neither statute nor regulations
The process for initiating and conducting formal removal
provide for bond hearings for aliens subject to mandatory
proceedings is primarily governed by INA §§ 239 and 240,
detention under the INA (e.g., aliens who have committed
implementing regulations found in 8 C.F.R. chapter V, and
certain crimes or engaged in terrorism). DHS has exclusive
EOIR’s Immigration Court Practice Manual.
authority over those aliens’ custody status.
Commencement of Formal Removal
Continuances and Change of Venue
Proceedings
An alien may request a continuance of proceedings,
Formal removal proceedings begin with DHS filing in
including to seek more time to prepare for a merits hearing
immigration court a Notice to Appear (NTA) that includes
or to pursue “collateral” relief outside the removal
the allegations and charges against an alien believed to be
proceedings (e.g., by filing a visa petition with DHS). An IJ
subject to removal. The NTA must be either served on the
generally has considerable discretion whether to grant a
alien in person or mailed to the alien or the alien’s counsel
continuance. When a continuance to pursue collateral relief
of record. An NTA does not have to initially specify the
is sought, immigration authorities consider, among other
time and date of the alien’s hearing in order to commence
factors, the likelihood that the relief will be granted and will
formal removal proceedings. See e.g., United States v.
materially affect the outcome of the removal proceedings.
Cortez, 930 F.3d 350 (4th Cir. 2019). However, an NTA
Matter of L-A-B-R-, 27 I. & N. Dec. 405 (2018).
that omits this information will not trigger certain bars to
relief from removal, such as by cutting off an alien’s period
In some cases an alien may change address while
of continuous presence in the United States for purposes of
proceedings are pending. The alien may file a motion for
https://crsreports.congress.gov

Formal Removal Proceedings: An Introduction
change of venue to the immigration court that has
review a final order against an alien found removable based
jurisdiction over the region where the alien resides. An IJ
on certain enumerated crimes. Additionally, no court has
may grant a change of venue only if DHS is given an
jurisdiction to review certain discretionary denials of relief.
opportunity to respond to the motion and the alien provides
Courts retain jurisdiction to review constitutional claims or
a fixed street address where the alien may be reached.
questions of law raised in a petition for review.
Consequences of Failure to Appear
Motions to Reopen and Reconsider
If an alien receives proper notice but fails to attend a
An alien with a final order of removal may move to reopen
hearing, an IJ is required to order the alien removed in
proceedings before the BIA. Typically, a motion to reopen
absentia if DHS establishes that the alien is removable as
seeks relief based on new, previously unavailable evidence.
charged in the NTA. The order of removal may be
The motion must come with an application for relief and
rescinded if the alien (1) files a motion to reopen within 180
supporting documents. Generally, an alien may file only
days of the order and shows that the failure to appear was
because of “exceptional circumstances” (
one motion to reopen, filed within 90 days of the BIA’s
e.g., serious
decision. Exceptions exist, including when the motion is
illness); or (2) files a motion to reopen at any time and
made to apply for asylum based on changed conditions in
shows that the alien did not receive notice of the hearing, or
the alien’s country of nationality, or when DHS agrees to
that the alien was in custody and could not appear.
join the motion. Some courts have held that the time or
Merits Hearing and IJ’s Decision
numerical limitations may be waived (“equitably tolled”) in
some situations, such as if the alien was defrauded or
In the merits hearing, an alien may present testimony and
received ineffective assistance of counsel, if the alien
evidence in support of an application for relief. The IJ may
exercised due diligence in filing the motion. See e.g.,
direct the parties to present opening or closing statements.
Iturribarria v. INS, 321 F.3d 889 (9th Cir. 2003); Iavorski
The alien’s counsel (or the IJ if the alien is unrepresented)
v. INS, 232 F.3d 124 (2d Cir. 2000).
may conduct direct examination of the alien, and DHS
counsel conducts cross-examination. The IJ may question
An alien subject to a final order of removal may also move
the alien and any witnesses.
to reconsider with the BIA. The motion must be filed within
30 days of the BIA’s decision and specify the alleged errors
The IJ then issues an oral or written decision granting or
denying the alien’s application for relief
in that decision. The alien generally may file one motion to
. The decision must
reconsider. However, some courts have held that the time
also include a finding as to the alien’s removability. If the IJ
and numerical limitations on motions to reconsider may be
denies the application, the IJ must issue an order of removal
equitably tolled (e.g., because of ineffective assistance of
(but the alien may request an opportunity to voluntarily
counsel). See e.g., Iturribarria, 321 F.3d at 897. If the BIA
depart at his or her own expense in lieu of removal, unless
denies a motion to reopen or reconsider, the alien generally
ineligible). If the IJ grants the alien’s application for relief,
may seek judicial review of that decision.
or otherwise concludes the alien is not removable as
charged, the alien will not be subject to removal.
The BIA also may reopen or reconsider a case in which it
has rendered a decision on its own motion (“sua sponte”).
Appeal to the BIA
The decision to reopen or reconsider sua sponte is
Both the alien and DHS may appeal an IJ’s decision to the
discretionary and generally not subject to judicial review.
BIA. The Notice of Appeal must be filed within 30 days of
the IJ’s decision.
An alien who has not appealed to the BIA may move to
Absent an appeal, the IJ’s decision
reopen or reconsider an order of removal before the IJ
becomes administratively final.
(subject to time and numerical limitations). If the alien
Generally, following the Notice of Appeal, the BIA will
already appealed and the BIA issued a decision, the alien
order the parties to submit briefs in support of and against
must file the motion with the BIA. If the alien files the
the appeal. The BIA may summarily dismiss an appeal,
motion while an appeal to the BIA is pending, the BIA may
such as when the appealing party fails to specify the reasons
treat it as a motion to remand the case to the IJ for further
for the appeal or submits an untimely appeal. Absent
proceedings, and consolidate it with the appeal for decision.
summary dismissal, a single BIA member normally will
issue a decision on the merits. The BIA member may affirm
Attorney General (AG) Certification
the IJ’s decision without opinion if the appeal raises no
The AG has ultimate authority over agencies’ interpretation
substantial legal or factual issues, or raises issues controlled
and application of federal immigration laws, including in
by legal precedent. Otherwise, the BIA member issues an
formal removal cases. DOJ regulations require the BIA to
opinion. The BIA member may designate the case for a
certify cases for AG review when (1) the AG directs the
three-member panel decision in some circumstances (e.g.,
BIA to refer a specific case to him for review; (2) either the
to resolve inconsistent IJ rulings or to create precedent).
Chair or a majority of the BIA believes the case should be
referred; or (3) the Secretary of DHS or certain authorized
Judicial Review of Orders of Removal
DHS officials refer the case to the AG. The AG thus has
If the BIA affirms an IJ’s order of removal, that order
considerable authority to review BIA decisions and issue
becomes administratively final. An alien may seek judicial
superseding rulings.
review of a final order of removal by petitioning for review
in the judicial circuit in which the immigration court
Hillel R. Smith, Legislative Attorney
proceedings were completed. The petition must be filed
IF11536
within 30 days of the BIA’s decision. Still, there are
limitations to judicial review. For instance, no court may
https://crsreports.congress.gov

Formal Removal Proceedings: An Introduction

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
wish to copy or otherwise use copyrighted material.

https://crsreports.congress.gov | IF11536 · VERSION 2 · UPDATED