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1 1 (May 06, 2020)

handle is hein.crs/govdacb0001 and id is 1 raw text is: ,....... ...:s .-- ,' S , May 6, 2020 Formal Removal Proceedings: An Introduction The Fifth Amendment's Due Process Clause confers substantive and procedural protections to all persons within the United States, including non-U.S. nationals (aliens) who the federal government seeks to remove from the country. Once an alien has passed through our gates, even illegally, the Supreme Court has declared, the alien may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. Shaughnessy v. Mezei, 345 U.S. 206 (1953). Against this backdrop, the Immigration and Nationality Act (INA) and implementing regulations provide a framework for the Department of Homeland Security (DHS) to seek the removal of aliens from the United States. Aliens targeted for removal in the interior of the United States are typically placed in proceedings under INA § 240. These formal removal proceedings afford more robust procedural protections than the expedited removal process under INA § 235, which applies to aliens apprehended at or near the border who lack entry documents or have attempted to enter the country surreptitiously. Formal removal proceedings are conducted before an immigration judge (IJ) within the Executive Office for Immigration Review (EOIR). In these proceedings, the alien has a right to counsel at his own expense, the right to apply for available relief from removal (e.g., asylum), the right to present testimony and evidence on his or her own behalf, and the right to administratively appeal an adverse decision to the Board of Immigration Appeals (BIA). As authorized by statute, the alien may also seek judicial review of a final order of removal. The process for initiating and conducting formal removal proceedings is primarily governed by INA §§ 239 and 240, implementing regulations found in 8 C.F.R. chapter V, and EOIR's Immigration Court Practice Manual. of F'orma erdo,,, Formal removal proceedings begin with DHS filing a Notice to Appear (NTA) in immigration court. The NTA sets forth the allegations and charges against an alien believed to be subject to removal. The NTA must be served on the alien in person or, if personal service is not practicable, mailed to the alien or the alien's counsel of record. An NTA does not have to specify the time and date of the alien's removal proceedings in order to commence formal removal proceedings, so long as the alien later receives written notice of the hearing. See e.g., United States v. Cortez, 930 F.3d 350 (4th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019); Matter of Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018). K'iastre, Ca endar He'zrigs An alien will first appear before an IJ at a Master Calendar hearing. There the IJ is required to explain the alien's rights, the charges against the alien, and the nature of the proceedings. If the alien is unrepresented, the IJ must provide a list of free or low-cost legal service providers and give the alien an opportunity to find counsel (unless the alien waives counsel and elects to proceed pro se). An interpreter might also be used to facilitate communication in the hearing and other proceedings. At the first or a subsequent Master Calendar hearing, the alien is required to plead to the allegations and charges in the NTA, either admitting or denying them. The alien may also submit an application for any relief from removal. In the alternative, the alien may request the opportunity to voluntarily depart the United States at his or her own expense in lieu of removal proceedings (unless statutorily barred). If an alien files an application for relief, the IJ must schedule a merits hearing. An IJ may also schedule a merits hearing to address any contested issues about the alien's removability. DHS may generally detain an alien during the pendency of removal proceedings. If DHS opts to detain the alien, the alien may request a bond hearing before an IJ. The IJ may order the alien released on bond (in the amount of at least $1,500) or on the alien's own recognizance subject to certain conditions. If the IJ orders the alien detained, the alien may appeal to the BIA. Neither statute nor regulations provide for bond hearings for aliens subject to mandatory detention under the INA (e.g., aliens who have committed certain crimes or engaged in terrorism). DHS has exclusive authority over those aliens' custody status. An alien may request a continuance of proceedings, including to seek more time to prepare for a merits hearing or to pursue collateral relief from removal outside the removal proceedings (e.g., by filing a visa petition with DHS). An IJ generally has considerable discretion whether to grant a continuance. In cases where an alien seeks a continuance to pursue collateral relief, immigration authorities have required consideration, among other factors, of the likelihood that the relief will be granted and will materially affect the outcome of the removal proceedings. Matter of L-A-B-R-, 27 I. & N. Dec. 405 (2018). In some cases an alien may change address while proceedings are pending. The alien may file a motion for change of venue to the immigration court that has jurisdiction over the region where the alien resides. An IJ may grant a change of venue only if DHS is given an N,, 'gmm ppmmp mgnowgo 10 0\ ILU

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