PLACE IN REMOVAL PROCEEDINGS

PLACE IN REMOVAL PROCEEDING

By: Norka M. Schell, Esq.


A removal proceedings is an immigration court hearing to determine whether a non-citizen will be removed from the United States. Any person in the United States who is not a citizen of the United States may be removed to another country.


Hypothetical Situation

Maria is from Columbia. She entered in the United States on a student visa in September 2000. On March 2001, Maria dropped out of school and started working at a company by using a fake green card. Last month, USICE conducted a workplace raid at the job site and arrested her.

Is Maria in removal proceedings?


Maria is not a citizen of the United States. She is a citizen of Columbia. Therefore, she is an alien. Any alien in the United States can be placed in removal proceeding. Maria will be placed in formal proceedings when USICE files the Notice to Appear (NTA) in court.


The NTA must specify: (1) the nature of the proceedings again Maria; (2) the legal authority for the proceedings; (3) the acts or conduct that allegedly violate the law; (4) the formal charges and the statutory provisions allegedly violated; (5) Maria's right to representation, including time to secure counsel, and a list of available pro bono counsel; (6) the requirement that Maria provides in writing her address and telephone number, and the consequences of failing to do so, including the consequences of failing to appear at the hearing; and (7) the time and place of the hearing and the consequences of failing to appear, including the entry of a removal order in absentia.


The NTA needs only be in English, and needs only ten days notice of the hearing. In the NTA, Maria is called "RESPONDENT" (the person who must respond to the charges).


Proper Service

The NTA shall be served on the on Maria in person, or if personal service is not practicable, the NTA shall be served by regular mail to Maria or her counsel of record.

Assuming that USICE places Maria in proceedings and charged her with deportability, USICE will have the burden of establishing by "clear and convincing evidence" that Maria is deportable. This standard is lower than "beyond a reasonable doubt" standard used in a criminal proceedings, but higher than the "preponderance of evidence" standard used in civil proceedings. When USICE has the burden of proof, it is important that Maria's attorney holds them to it.

Maria's Rights

During proceedings, Maria has a right to counsel at her own expense, and she must be given adequate opportunity to obtain counsel.


While in proceedings Maria shall have a reasonable opportunity to examine the evidence against her, to present evidence on her own behalf, and to cross-examine government witnesses.


Maria must be notified that she may communicate with the consul or diplomatic officer of the country of her nationality.


If Maria does not understand English, she has the right to a translator as part of the right to present evidence and cross-examine witnesses.


While in proceedings Maria shall have a reasonable opportunity to examine the evidence against her, to present evidence on her own behalf, and to cross-examine government witnesses.


The immigration judge shall inform Maria of her apparent eligibility to apply for relief and will have the opportunity to make application during the hearing.


In all "applications for relief" from removal, the burden of proof is upon Maria.