The Immigration Court Process

Immigration court is an administrative court that decides whether non-citizens have the right to remain in the United States. It is officially known as the Executive Office for Immigration Review (“EOIR”).

Immigration court proceedings are presided over by immigration judges. The immigration judge determines, among other things:

  • Whether the law requires mandatory deportation of the immigrant,
  • If deportation is discretionary, whether the immigrant should be allowed to remain in the U.S., and
  • Whether the immigrant is entitled to asylum or other relief that will stop deportation.

To help you better understand the immigration court process, our criminal and immigration lawyers discuss the following, below:

1. How does someone end up in immigration court?

The first step in a deportation occurs when U.S. Immigration and Customs Enforcement (ICE) takes someone into custody. This can happen when:

  • A non-citizen is convicted of a deportable crime (or released from incarceration for such an offense);
  • Someone is stopped unlawfully crossing a U.S. border or entry point;
  • A non-citizen requests asylum in the U.S. or other protection from persecution; or
  • ICE suspects someone of being present in the U.S. unlawfully.

2. Can I get released from detention on bond?

People arrested on immigration charges may be able to secure conditional release upon payment of a bond.

Bond is not available to people who are subject to mandatory detention. Mandatory detention can result because:

  • The immigrant has committed a deportable or inadmissible crime,
  • The immigrant is seeking asylum in the U.S., or
  • The alien is in the U.S. unlawfully.

To learn more about how to obtain a bond, please see our article on Bond Hearings in Immigration Court.

3. Is it possible to negotiate a “plea deal” in an immigration case?

Following a detention, ICE will refer the matter to the Department of Homeland Security (DHS). DHS will then decide whether deportation is optional or mandatory.

If deportation is optional, the Department of Homeland Security (DHS) will have to decide whether to initiate removal proceedings.

DHS does not have the resources to prosecute all cases of possible deportation. An experienced California criminal and immigration lawyer may be able to negotiate with the DHS prosecutor so that the case does not move forward.

4. Will I get an immigration hearing?

People who are in the U.S. lawfully or have been in the U.S. for more than two years continuously are entitled to a formal hearing before an immigration judge.

You are in the U.S. lawfully if you are:

Other immigrants may be subject to “expedited removal.” People subject to expedited removal can usually be deported immediately, without a formal hearing or even the right to a lawyer.1

Aliens subject to expedited removal may, however, be entitled to limited proceedings in some circumstances, such as:

  • They have a "credible fear" that they will be subjected to persecution or torture if deported; or
  • They claim to be U.S. citizens or green card holders.

Traditionally the only people subjected to expedited removal were those caught within 100 miles of the border and within 2 weeks of unlawfully entering the United States.

But under a new executive order signed by Donald Trump, expedited removal applies to anyone who cannot produce documentation proving they have been in the U.S. continuously for at least two years.2

5. What is a "Notice to Appear" in immigration court?

After ICE detains someone who is not subject to expedited removal, the matter gets forwarded to the Department of Homeland Security. It is then up to the DHS whether to initiate removal proceedings.

Immigration courts are backlogged, so an alien who is not subject to mandatory deportation may be released. Those most likely to be released are people eligible to adjust their status from illegal to legal.

But those with serious criminal convictions or who are inadmissible to the U.S. will likely be served with a with a Notice to Appear (NTA) in immigration court. 

The NTA may be served on the immigrant in person by an immigration officer or by mail to the alien's last-known address. If the alien has a lawyer of record on file, the lawyer will be sent a copy.3

The notice will include a statement of the charges and the alleged reason(s) why the alien is removable. For example:

  • A criminal conviction,
  • Unlawful entry to the U.S., or 
  • Overstaying a visa.

DHS will also file the NTA (Form I-862) with the immigration court. Filing with the immigration court is what triggers the commencement of the removal proceedings.

6. When will my case get heard?

The Notice to Appear will include a date and location for the initial hearing, known as the “Master Calendar Hearing” (MCH). Alternatively, the specifics may be sent in a separate Notice of Hearing.

By law, the hearing must be scheduled no earlier than ten days from service of the notice. Usually, this is desirable as it gives the detainee time to get paperwork in order and find a lawyer.

The immigrant may, however, 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.

This does not mean a case will get resolved quickly, however. Due to a large backlog of immigration cases, it can take months or even years for an immigration case to be decided.

In California, the average time to complete an immigration case is 2-3 years, depending on whether the case involves a criminal conviction (which takes longer).4

7. Can I have a lawyer in immigration court?

Immigrants have the right to be represented by a lawyer in immigration court -- at their own expense. Unlike criminal trials, there is no constitutional right to a court-appointed lawyer.

The ICE officer or court will provide immigrants with a list of low-cost legal services in the area where the hearing is being held.

Aliens can also represent themselves (called a “pro-se” appearance), though this is not recommended.

If you need more time to find a lawyer, you can ask the immigration judge for extra time at your first hearing.5

8. What if I don't speak English?

If the immigrant does not speak English well, he or she is entitled to an interpreter at no cost to the immigrant.

The translator may not be available to attend hearings in person but may translate over the phone.

If the translator is not doing a good job, the immigrant can request a different one as long as the request is in good faith.

An immigrant is entitled to a translator at each stage of the immigration court process.

9. What happens if I miss a hearing?

All immigrants must personally attend the master calendar hearing and any other mandatory hearings even if they are represented by a lawyer.

An immigrant who does not appear at a mandatory hearing will be deported immediately. The immigrant will also forfeit his or her bond.

If there is a very good reason for missing a hearing (such as the serious illness of a close relative) the judge may forgive a non-appearance. In such a case, the immigrant should notify the court as soon as possible.

Aliens can find out when their next hearing is by calling the Immigration Court (EOIR) hotline at 1-800-898-7180. If you are incarcerated, you can use a special phone in your unit (with a code) to call the hotline for free.

female judge talking to male lawyer

10. The immigration court process

If a case does not get resolved with the DHS prosecutor, it will go to court. Immigration court is not a criminal court. It is an administrative (civil) court. Proceedings are overseen by an immigration judge.

Let's take a closer look at each of the steps of involved in an immigration hearing.

10.1 First appearance / Master calendar hearing

An alien's first appearance in immigration court will be for the master calendar hearing (“MCH”). The MCH is short – typically only 15 minutes to one hour (though it may take several hours for the case to be called).

No evidence or witnesses are presented at the master calendar hearing. Instead, the judge will review the charges and set dates for:

  • The submission of documents, and
  • The main deportation hearing – called the “merits hearing” or “individual hearing.”

During the master calendar hearing (MCH) the Immigration Judge will review the charges against the immigrant and ask him or her to admit or deny each one. The judge will also:

  • Tell the immigrant about defenses to deportation;
  • Advise the immigrant of the dates by which he or she must file various forms with the court; and
  • Set the date of the individual merits hearing (where the immigrant will present arguments, witnesses and other evidence).

Other things an alien can do at the MCH include:

  • Ask for an interpreter; 
  • Request a bond hearing (if the immigrant is still in detention); 
  • Ask for more time to find a lawyer; and/or
  • Request asylum in the United States or other protection against persecution or torture.

Depending on the complexity of the case, there may be more than one MCH.

10.2. Pre-hearing conferences

Before the merits hearing is held, either party or the judge can request a pre-hearing conference. Pre-hearing conferences allow the parties to stipulate (agree) to certain facts and narrow the issues to be determined at the hearing.

The judge can also order the parties to file pre-hearing briefs if they would be helpful.

Pre-hearing briefs contain legal references and arguments that might help the judge make a decision. Parties often choose to file pre-hearing briefs even when the judge does not require them.

10.3. Pre-hearing motions

Before the merits hearing, a party may wish to bring a motion to have the immigration judge do or refrain from doing something. These motions often require a hearing. The immigrant does not usually need to attend these if represented by a lawyer.

Typical motions brought before the merits hearing include (but are not limited to) requests to:

  • Extend the time for producing documents,
  • Move the proceedings to a different immigration court,
  • Issue a subpoena, or
  • Hold a pre-hearing conference.

10.4. Merits Hearing / Individual Hearing

The “merits hearing” (also called an “individual hearing”) is the main immigration court proceeding. It is the immigration court's equivalent of a trial.

The merits hearing is where the immigrant will present evidence and make legal arguments about his/her right to stay in the U.S.

The merits hearing usually takes three-four hours to complete – though not necessarily in a single day. Hearings are often continued to a date several weeks, months or even years after the initial date.

Things an immigrant can do during the individual merits hearing include:

  • Testify,
  • Have other witnesses testify on the immigrant's behalf,
  • Present documents, and
  • Make arguments as to why the immigrant is entitled to or should be allowed to remain in the U.S.

10.5. The immigration judge's decision

The Immigration Judge may render an oral decision at the conclusion of the merits hearing. Or the judge may take some time to consider the matter and issue an oral or written decision later.

If the judge issues a decision orally, the court will provide the parties with a signed summary order. If the judge issues a written decision, it will be mailed to the immigrant or, if applicable, the immigrant's attorney.

The decision of the immigration judge is final unless either party appeals it to the Board of Immigration Appeals within 30 days.6

11. What happens if I win my deportation hearing?

If the judge allows the immigrant to stay in the country, the immigrant will receive “post-order” instructions from the Department of Homeland Security.

These instructions describe the steps the immigrant should take to obtain documentation of his or her immigration status.

Be aware, however, that DHS has 30 days to appeal the decision to the Board of Immigration Appeals. The DHS may waive its right to appeal. But until it does – or until the deadline passes without an appeal being filed -- the matter is not final.

12. What happens if I lose my merits hearing?

An immigrant has the right to appeal an immigration judge's decision to the Board of Immigration Appeals (BIA). At the end of the merits hearing, the judge will ask if the immigrant wishes to do so.

If the immigrant does not want to appeal the government can begin the deportation process immediately.

Otherwise, the immigrant has 30 days to send a Notice of Appeal to the BIA. If the immigrant misses this deadline, he or she will be deported.

13. How long will it take for me to be deported?

By law, ICE has 90 days to deport someone after a final deportation order. But the actual time depends on how difficult it is to obtain travel documents and whether the immigrant's home country is willing to take the immigrant back.

As a practical matter, this can take anywhere from several days to several months.

If it takes longer than six months, the alien is entitled to a bond hearing. The Supreme Court has held that non-citizens cannot remain detained indefinitely if there is no realistic chance they will be deported (for instance, because the alien's home country will not take them).7

Such aliens may be let out on supervised release (similar to parole).

14. Can I appeal the immigration judge's decision?

As noted above, either party may appeal the immigration judge's decision to the Board of Immigration Appeals (“BIA).8 The appeal must be requested within 30 days of the date of the immigration judge's decision.

Decisions of the BIA, in turn, can be appealed to a federal appellate court.

Need help with the immigration court process? Call us...

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Call us at (855) LAWFIRM for help

If you or someone you know has been arrested by ICE, we invite you to contact us for a free consultation.

Our California immigration lawyers represent clients throughout the state who are facing deportation or inadmissibility.

We can also defend you if you have been accused of a crime that carries immigration consequences.

Call us at (855) LAWFIRM or fill out the form on this page to speak to a knowledge lawyer.

And if you were arrested or are in detention in Nevada, we have Nevada immigration lawyers who can help.

Legal references:

  1. Immigration and Nationality Act (INA) § 235(b)(1); 8 CFR § 1235.3 (b)(2)(ii).
  2. Executive Order 13767.
  3. 8 USC § 1229 and § 1229a; 8 CFR § 1239.1; Hamazaspyan v. Holder, 590 F.3d 744 (9th Cir. 2009). 
  4. Information taken from the Transactional Records Access Clearinghouse (TRAC), a data gathering, data research and data distribution organization at Syracuse University.
  5. 8 CFR § 1292.1.
  6. 8 CFR § 1003.1(b).
  7. Zadvydas v. Davis, 533 U.S. 678 (2001).
  8. 8 C.F.R. § 1003.1.

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