REMOVAL PROCEEDINGS

By: Norka M. Schell, Esq.

Jose, from Columbia, applied for adjustment of status. At the interview, the USCIS officer learns that Joe made a false claim to U.S. citizenship last December by showing a U.S. citizen birth certificate to qualify for a social security number. Jose is placed in removal proceedings.

Raul, from Mexico, crossed the border into Texas without documents and met up with a smuggler, who agree to drive him to New York. A few miles from the border, their car was stopped by border patrol agents and Raul was placed in removal proceedings.

Maria, from India, entered the United States with a tourist visa and has remainded beyond her authorized stay. Maria may be placed in removal proceedings because she violated her tourist status.  

You probably know someone who was placed in removal proceedings. But what is "removal proceeding"?

A removal proceed is an immigration court hearing before the immigration judge to determine whether a non citizen will be removed from the United Sates because of a violation  of an immigration law.


The Immigration and Nationality Act (“INA”) expressly charges the Attorney General (“AG”) with the administration and enforcement” of the immigration laws. More specifically, it gives the “AG” both the power and the duty “to control and guard the boundaries and border of the United States against the illegal entry of aliens.” The “AG” has authorized the Department of Homeland Securuty ("DHS") employee who bears the title “immigration officer” to exercise those and other powers. Immigration officers include all immigration inspectors at the border, all border patrol agents, all investigators, and many others. The “AG” may also deputize properly trained state employers to perform investigation, apprehension, and detention functions.


DHS does not bring removal proceedings against every alien whom it suspects of being deportable. For one things, it recognizes that there are certain cases in which extraordinary sympathetic factors would make removal unconscionable. For another, DHS could not remove all deportable aliens even if it wanted to. Removal proceedings require apprehension, investigation, processing, possibly detention, prosecution, adjudication, removal, and record-keeping. Like any other government agency, DHS has limited resources. It has to decide how it can most effectively allocate those resources between law enforcement functions and other functions, and within law enforcement.

For some time DHS policy has been to refrain from initiating removal proceedings in certain unusually compassionate cases. That policy has been given different names over the years: “prosecutorial discretion”, “nonpriority status”, and deferred action”. Whatever the name, the theory has been that the case is simply put on the back burner. Technically DHS remains free to proceed against the alien in the future if its workload or its priorities changes; realistically, since the actual reason for holding back is the presence of exceptionally sympathetic factors, relief will typically be permanent unless those individual factors change.

Once removal proceeding starts, the Immigration Judge acquires jurisdiction over the case. At that point the DHS no longer has the discretion not to prosecute; it may file a motion to dismiss (without prejudice), but is up to the immigration judge whether to grant the motion.


Individuals in removal proceedings are called "respondents". Respondents in proceedings have a right to be represented by counsel at their own expenses; right to be advised of eligibility for relief; and right to due process.


Unfortunately, most respondents face removal proceedings unrepresented and an increasing number are detained. If a respondent is unrepresented, the likelihood of him avoiding deportation is much smaller than it is for those who have the resources to retain counsel.

If you would like more information on removal proceendings, call the Offices of Norka M. Schell, LLC at (212) 564-1589.