December 18, 2018 Substantive Law

Expectations of an Immigration Hearing: How to Prepare, Part 1

By Julie Houth

The need for immigration lawyers has grown exponentially, especially with the continuous change in immigration laws. Although the terms immigration and deportation are often in the news, many people are unaware of the legal procedures that are associated with U.S. immigration laws. This article intends to provide a guide for the process and the expectations of an immigration hearing and how to prepare for it, whether in the capacity of an attorney or for someone required to interact with the Immigration Court. This article is part one of an ongoing series and also provides perspective from current immigration attorneys in the field located in various areas of the country. Part two of this series will appear in the next issue of the GPSolo eReport.

Immigration Court Procedures

Immigration Court, formally known as the Executive Office for Immigration Review (EOIR), has strict procedures for scheduling, appearing, and making requests of the judge or trial. Attorneys or pro se individuals will need to interact with the EOIR in several situations that include receiving a Notice to Appear.

Notice to Appear (NTA)

A Notice to Appear (NTA) is a document that indicates the initiation of removal proceedings against an individual. An NTA can be received through mail or in person from an immigration officer. The Immigration Court that will be conducting the removal hearing must also be served the NTA. If an individual receives an NTA, he or she must appear in court on the specified date or a future date to be determined by the EOIR.

At least ten days must elapse between service of the NTA and the first scheduled court hearing by law. This ten-day notice requirement can be waived and usually occurs when the individual is held in the custody of immigration officials. Individuals could be detained because Immigration and Customs Enforcement (ICE) has refused to issue a bond for a release or the individual cannot afford to pay the bond. Attorney Joshua Daley Paulin of the Law Office of Joshua Daley Paulin in Framingham, Massachusetts, says that in a situation where a client is detained, “I’d likely first see them after they’re detained, so I’d look into the possibility of bond and then what relief may be available.” Many immigration attorneys have witnessed a lack of representation with individuals that must interact with the EOIR. Paulin further says, “I see it more in detained settings as represented respondents are called first in the Boston EOIR on the non-detained calendar.” Attorney Nallely Abad of Velasquez Immigration Law Group in Las Vegas, Nevada, further adds, “If they are not bond eligible, the process is very quick and usually not favorable to the client.” Therefore, it is very important to understand the details of an NTA and what subsequent actions need to be taken to ensure compliance and that relief rights are preserved.

Contents of an NTA. The NTA lists general information such as the individual’s name, alien registration number, date of birth, and address on file. This information should be reviewed to ensure accuracy. If there is any information that is incorrect, those errors should be corrected with the court to prevent a misunderstanding.

The NTA also lists three different statements:

  1. You are an arriving alien.
  2. You are an alien present in the U.S., who has not been admitted or paroled.
  3. You have been admitted to the U.S., but are removable for the reasons stated below.

Only one box should be checked out of the three statements. If the incorrect box is checked, the individual will need to provide evidence in court to show there has been a misclassification.

The NTA will then list factual allegations and charges of removability. The factual allegations form the basis for removal. The charges of removability provide the legal reasons why the U.S. government believes deportation is appropriate. The bottom of the NTA should list the date, time, and location of an individual’s initial Master Calendar Hearing. If that information is not listed, a separate Notice of Hearing should be mailed. If an individual fails to attend the hearing, that individual may be ordered to be removed due to the failure to appear, and rights to apply for relief from removal will no longer be available. Although the document is usually one to two pages, Abad says, “It is key to review this document with your client. There are certain forms of relief that are available just from that first section on the NTA. This document is very important to have, and if you do not get a copy from your client, who was served with it, you need to make sure to request it from the court.”

Change of venue. The NTA will state the location of the Immigration Court where the individual must appear; however, not all individuals can appear at that location for different reasons. “The requirements begin with submitting a change of address EOIR-33IC on behalf of the client,” says Abad. Paulin says that it is possible to change the venue of the Immigration Court “by means of a motion to change venue.” In this motion, it should include the date and time of the next scheduled hearing. In addition, the individual must respond to all allegations listed on the NTA and designate a country to return if the case is denied or if it is not contested by a defense theory. This request should also include the type of relief sought from the EOIR. Lastly, the individual is required to provide an explanation why a different location is preferred. In Abad’s experience, “The client must be living in a different jurisdiction in order for the court to consider the change of venue.” Note that the EOIR is not required to grant a request to change venue, but can change the venue as a matter of discretion after looking at factors of the case. These factors include whether the case has been rescheduled previously and whether the person has a viable option to stay in the United States.

Legal Resources and Future Topic for Discussion

There are several local nonprofits that offer pro bono or low-cost services, such as the Legal Aid Society immigration clinics located across the country. Unfortunately, many individuals cannot afford legal services and cannot wait for the agencies to get back to them. Therefore, they go to court alone without any knowledge of the law or process, according to Abad. As a result, she says, “Some of those individuals have some form of relief that they are not aware of and end up with a deport order.” No one should face immigration proceedings alone and thus should seek legal help. The next article of this series will discuss how to prepare for a Master Calendar Hearing and Removal Hearing.

Entity:

Julie T. Houth, Esq., LL.M (Taxation), is a staff attorney for Robbins Geller Rudman & Dowd LLP, a law firm with more than 200 lawyers across the nation specializing in complex litigation representing plaintiffs in securities fraud, antitrust, corporate mergers and acquisitions, consumer and insurance fraud, multi-district litigation, and whistleblower protection cases. Julie is based at the firm’s headquarters in San Diego, California. She is an American Bar Association Young Lawyers Fellow for the 2018-2019 term with the GPSolo Division and she serves as one of the New York State Young Lawyers Delegate to the American Bar Association House of Delegates. Julie is also part of the leadership committee for the San Diego County Bar Association's Tax Law Section. She may be reached at jhouth@rgrdlaw.com.