Removal Defense

Any non-citizen (or “alien”) who is present in the United States without legal status, or who has fallen out of legal status, or who has otherwise violated their legal status, may be taken into custody by U.S. immigration authorities and placed in removal proceedings with the Executive Office for Immigration Review (EOIR), also known as the “immigration court”.  

The noncitizen is officially placed in removal proceedings when the U.S. Department of Homeland Security (DHS) issues a charging document called a “Notice to Appear” (or “NTA”), serves it to the noncitizen, and files a copy of it with the immigration court to start removal proceedings under section 240 of the Immigration and Nationality Act (INA) against the individual who is known in removal proceedings as the “respondent”.  

The NTA will list all the U.S. government’s factual allegations and legal reasons why it believes that the noncitizen is removable from the United States.  The NTA will also inform the noncitizen of their rights and obligations, such as the right to obtain counsel, the responsibility to inform the government of any change of address, and the consequences of failing to provide a change of address or failing to appear for a scheduled hearing. After the NTA has been filed with the court, the court will schedule the person for an immigration court date and issue a Notice of Hearing with the date, time, and location of their hearing.

Even if a noncitizen is found by an immigration judge to be in violation of the INA and to, thus, be technically removable from the United States, the noncitizen could be eligible for some form of relief in order to avoid being actually ordered removed from the United States.

The types of relief available include, but are not limited to, the following:

• Adjustment of Status
• Cancellation of Removal
• Asylum and/or Withholding of Removal
• Any of several types of Waivers
• Deferred Action
• Prosecutorial Discretion
• Administrative Closure
• Voluntary Departure

Once a noncitizen has been placed in removal proceedings, it is extremely important that they appear for all scheduled court dates unless their presence has been previously waived by the immigration judge.  If the noncitizen fails to appear for a scheduled court date and their presence had not been previously waived, the immigration judge will most likely enter an in absentia order of removal against the person.  In other words, the noncitizen will automatically lose their chance to apply for any relief that they could have applied for and the judge will summarily, in the person’s absence, sign an order instructing the government to deport that person from the United States to a country designated by the judge.  

Unlike with criminal proceedings, where the defendant has a fundamental right to counsel at the government’s expense, removal proceedings with EOIR do not include this right because it is not a criminal proceeding.  While a respondent in removal proceedings does have the right to be represented by counsel, the U.S. government will not provide them with an attorney even if the person cannot afford one.  Each respondent in removal proceedings is responsible for obtaining their own attorney, if they wish to be represented by one; or in the alternative they can opt to represent themselves.

It is extremely advisable to obtain competent legal counsel to represent you if you are in removal proceedings with the immigration court.  Statistics show that having legal counsel is an enormous advantage for any person in removal proceedings.  And while having an attorney on your side does not by any means guarantee that you will win your case, it does improve your chances dramatically.  

Attorney Hiram J. Malaret has years of experience representing clients in immigration court and will see to it that your case is handled with the utmost care and professionalism.  For a free consultation, call HJM Immigration Law PLLC at (305) 613-3868.