Non-U.S. residents who are convicted of a serious crime or in the country unlawfully may be served with a Notice to Appear (NTA) in immigration court.
Receiving an NTA does not necessarily mean an immigrant will be deported. It means the immigrant must go through the immigration court process in front of an immigration judge.
Ways an immigrant can fight deportation after receiving an NTA include (without limitation):
- Prosecutorial discretion (persuading ICE not to pursue the case),
- Post-conviction relief for a criminal charge,
- Winning the case in immigration court,
- Challenging a defect in the Notice to Appear,
- Obtaining relief from an order of deportation through:
- Voluntary departure.
To help you better understand Notices to Appear in immigration court, our California immigration lawyers discuss, below:
- 1. What is a “Notice to Appear” in immigration court?
- 2. How do I receive an NTA?
- 3. Who issues the Notice to Appear in immigration court?
- 4. When will my hearing be?
- 5. Will I get an NTA if I am placed in “expedited removal” proceedings?
You may also wish to review our article on 15 Ways to Stop Deportation.
A Notice to Appear (NTA) is a legal summons to appear in immigration court. It is issued by the Department of Homeland Security (DHS).
An NTA may be served after an immigrant applies to the U.S. Citizenship and Immigration Services (USCIS) for a benefit such as adjustment of status or naturalization, and the benefit is denied because of:
- Fraud, or
- Certain determinations such as termination of Conditional Residence Status, termination of refugee status, or denial of Petition to Remove the Conditions of Residence
However, an NTA is most likely to be served after a non-U.S. resident is convicted of:
The list of deportable and inadmissible crimes is long. It includes — among many other offenses — such crimes as:
- Assault with a deadly weapon (“ADW”),
- Drug trafficking,
- DUI with multiple convictions,
- Prostitution-related activity,
- Rape, and
- Sexual abuse of a minor.
An immigrant may receive the NTA (Form I-862) either:
- Personally, from an immigration officer, or
- By mail at the alien’s last-known address.
If the alien has a lawyer of record on file, the lawyer will also be sent a copy.
The notice will include a statement of the charges. It will set forth the alleged reason(s) why the alien is subject to deportation, for instance:
- The alien has been convicted of a removable crime,
- The alien entered the U.S. unlawfully, or
- The alien overstayed a visa.
The Department of Homeland Security (DHS) will also file the NTA with the Executive Office for Immigration Review (“EOIR” or “immigration court”). Filing the Notice with the immigration court is what triggers the commencement of removal proceedings.
In the case of individuals convicted of a crime, the NTA is usually issued by a U.S. Immigration and Customs Enforcement (“ICE”) officer.2
ICE officers have considerable discretion as to whether to issue an NTA in any particular case. Their highest priority is deporting aliens who are “a danger to national security or a risk to public safety.”
U.S. Citizenship & Immigration Services (“USCIS”) may also issue an NTA — when it finds a non-citizen has not complied with regulations
governing admission or maintaining lawful status after admission.
And finally, U.S. Customs and Border Protection (“CBP”) may issue an NTA when a non-citizen arriving in the U.S.:
- Is deemed inadmissible,
- Does not withdraw his/her request for admission,
- Is not placed in expedited removal proceedings, and
- Does not make an asylum claim.
Although CBP apprehends more than 300,000 arriving aliens per year, it issues NTAs to fewer than 10% of such arriving aliens.3
The Notice to Appear will contain the date, time and location for the initial immigration court hearing, known as the “Master Calendar Hearing” (MCH). Or this information will be sent in a separate Notice of Hearing.
By law, the MCH will take place no earlier than ten days from the service of the notice. This gives the detainee time to find a lawyer, if desired, and to get the paperwork in order.
Unlike in criminal trials, the government is not required to appoint the immigrant a lawyer at government expense. Immigrants may hire an attorney at their own expense. Or they can seek the services of a no-cost (pro bono) or low-cost lawyer.
If you are served with a Notice to Appear, the government will provide you with a list of lawyers (updated quarterly) willing to represent noncitizens on a pro bono basis. You may also be able to get additional names from your local bar association. For instance, in Los Angeles, you may wish to contact the Los Angeles County Bar Association’s Immigration Legal Assistance Project.
An immigrant may waive the 10-day notice requirement. This can be desirable if the alien is being held in ICE custody and cannot obtain, or pay for, a bond.
The short answer is “no.” Expedited removal proceedings allow the government to deport an immigrant immediately and without a formal hearing.
Expedited removal does not usually apply after a criminal conviction, however. It is most often used to deport immigrants who:
- Entered the U.S. without valid documents (such as a passport and/or visa);4 or
- Obtained entry by actual or attempted fraud or misrepresentation.5
However, in cases of expedited removal, a non-citizen may sometimes wish to be served with an NTA and placed into formal removal proceedings.
We recommended highly discussing your options with an experienced California immigration lawyer.
Received a Notice to Appear in Immigration Court? Call us for help…
Our California criminal and immigration attorneys have a great deal of experience fighting deportation and challenging criminal convictions.
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It is possible to fight deportation! Call us today to find out how we can help you do it.