While the stated goal of Immigration and Customs Enforcement’s Enforcement and Removal Operations has been to identify, detain, and deport undocumented immigrants who “present a danger to national security and a threat to public safety,” arrests and deportations of people with no criminal record has increased since 2016. Because of ICE’s growing emphasis on deporting a broad swathe of undocumented immigrants, it is important to understand the procedure, including the rights and remedies available. Undocumented immigrants who don’t opt for voluntary departure at the outset of deportation proceedings can expect to undergo a series of hearings (and possibly, appeals) before being removed from the U.S.
Expedited removal – Currently, expedited removal is reserved for undocumented individuals who are found within 100 miles of U.S. borders and who have been in the U.S. for two weeks or less. Rather than undergoing arrest and a separate, formal hearing by an immigration judge, an undocumented person who experiences expedited removal is detained and ordered to leave by an officer of the Department of Homeland Security. This process may take only a few hours. An expedited removal order cannot be appealed, but it is possible to ask the Department of Homeland Security to review any orders issued by its personnel. Individuals facing expedited removal are not entitled to bond or to representation by counsel.
Notice to Appear – The traditional deportation process begins with a written notice. ICE explains in writing why the agency believes that the recipient is undocumented and should be deported back to the country of origin. This Notice also describes the consequences of failing to appear at any scheduled proceeding. The Notice informs the individual of the right to be represented by counsel throughout the procedure, although it also cautions that the government does not pay for an undocumented individual’s attorney. Notice may be served in person or through the mail.
Bond Hearing – The deportation process may begin with a bond hearing. Detainees may ask to appear before a judge in the Department of Justice’s Executive Office for Immigration Review (i.e. immigration court). This hearing determines whether they will be released on bond and how much the bond will be. The bond amount is based on a range of factors, which may include the individual’s local family ties, criminal record, potential threat to the community or national security, and ability to post bond. The individual agrees to return for all hearings or forfeit the bond. If bond is denied, or if it is too high to post, the individual may appeal the decision to the Board of Immigration Appeals. A 2018 ruling by the U.S. Supreme Court held that immigrants seeking entrance at the U.S. border, and those held in custody for more than six months, do not have an automatic right to a bond hearing.
Master Calendar Hearing – The master calendar hearing sets forth the procedure for the rest of the case, including the schedule for any future hearings. This hearing is conducted by a federal immigration judge with an ICE attorney present. The judge reviews the charges listed in the Notice to Appear; detainees must admit or deny each charge. Detainees also may raise defenses to removal, including: request for asylum based on persecution, or fear of persecution, in the country of origin; cancellation of removal based on their conduct and time spent in the U.S.; and marriage to a U.S. citizen. The Notice to Appear gives undocumented individuals 10 to 15 days’ notice before their initial hearing; however, the length of the procedure varies from court to court and judge to judge.
Merits Hearing – The merits hearing, or individual calendar hearing, takes place before an immigration judge. Here, detainees present arguments about why they should be allowed to stay in the U.S. These hearings may take a few hours or may extend over several days and look like conventional trials. Detainees are entitled to representation by an attorney; the government is represented by an ICE lawyer. The parties may present witnesses and submit evidence. At the end of the hearing, the judge determines whether the individual may remain in the U.S.
Order of Removal – The immigration judge may issue a ruling at the end of the merits hearing or may take additional time to consider the evidence and render a decision. If the judge finds that the individual is not entitled to remain in the U.S., then the judge issues an order of removal. Individuals who are not kept in custody at the end of the merits hearing may receive the judge’s decision by mail. The individual may stay with their family until the written decision is received; once that decision is received, the individual has a duty to appear at a local ICE office by a specified date and time. Failure to appear can result in arrest and detention. An individual can appeal an order of removal within 30 days. ICE also can appeal the judge’s decision. The individual subject to removal also may ask the immigration judge to reconsider the decision or reopen it based on new facts.