If you have recently been charged with or convicted of a crime, the Department of Homeland Security (DHS) may place a detainer on you. The detainer tells state prison officials to notify DHS if they are going to release you. Once a detainer is placed on you, you will not be able to get out of jail on bond.
Also, if you have been sentenced to boot camp for your crime and you have an immigration detainer, you will probably not be able to serve the boot camp sentence, and will be put in jail instead.
2. Notice to Appear
Once DHS begins the removal case, it will serve you with a Notice to Appear (NTA). The NTA should list the immigration charges against you, and the facts that back up the charges. DHS can serve the NTA to you by mail or give it to you in person.
If you are detained, your case will most likely be done by videoconference. This means that you will not appear in person in front of a judge. Instead, you will be taken to a room in your detention center where you will watch the judge and lawyers on a television, and they will watch you on a television in the courtroom.
In removal cases, there are two types of hearings. The first kind of hearing is called a master calendar hearing. The judge will ask you whether you admit or deny the charges against you, and whether you will try to fight the deportation. You have a right to ask for a continuance, or delay, at the hearing while you try to get a lawyer.
The second kind of hearing is the individual calendar or merits hearing. At the merits hearing, you and your lawyer give the reasons why you cannot or should not be deported.
If you fail to attend your hearing, you may receive an In Absentia Order of Removal. This is an order deporting, or removing you. It is difficult to remove this order once it is in place, so it is important to be present for your hearings.
Possible outcomes of the hearing
Suspension of deportation
For deportation proceedings from before April 1, 1997, a judge may grant suspension of deportation if you qualify. This is hard to do, and you must show that deportation would cause extreme hardship to either your spouse, child, or parent who is a U.S. citizen or legal permanent resident. You must also meet other requirements.
Cancellation of removal
Cancellation of removal is similar to suspension of deportation and is for removal proceedings since April 1, 1997. To qualify, you must show extreme hardship to a spouse, child, or parent who is a U.S. citizen or legal permanent resident, good moral character, and meet certain time requirements for living in the United States.
This is available to green card holders and to people without green cards. It is difficult to get cancellation of removal, so you should speak to a lawyer about applying.
A voluntary departure means that you are leaving the United States on your own. You can ask the judge for this during your case. You cannot get voluntary departure if you have been convicted of an aggravated felony.
If the judge gives you voluntary departure, it will make it easier for you to legally come back because you will not have been ordered to be deported.
The judge will give 30-120 days for you to prepare your departure from the United States. You must make the arrangements at your own cost and confirm to the government that you returned to your country.
If you accept voluntary departure from a judge, but then fail to leave before the judge’s deadline, the voluntary departure order automatically becomes a removal, or deportation order. You can be arrested and deported at any time without further notice or proceedings if that happens.
Grant of relief
The immigration judge may grant you your defense against your removal from the US. If the immigration judge grants you relief, then DHS can waive their right to appeal. They can also reserve their right to appeal the judge’s grant of relief.
If DHS waives their right to appeal, then the immigration judge’s decision is final, and you have won your case. If DHS reserves the right to appeal, then it has 30 days to file an appeal of the judge’s decision. If DHS files the appeal, then you will need to continue fighting your case before the Board of Immigration Appeals. If DHS does not file the appeal within 30 days, then the immigration judge’s decision is final and you have won your case.
For more information on defenses during removal or deportation see The National Immigrant Justice Center’s Packet About Detention, Deportation, and Defenses Under U.S. Immigration Law.
Denial of relief
The immigration judge may deny your defense against your removal from the United States. If you lose your case in immigration court, you can reserve your right to appeal the judge’s decision. Or you can accept the judge’s decision and leave the United States.
If you reserve your right to appeal, the notice of appeal must be filed with the Board of Immigration Appeals within 30 days of the immigration judge’s decision. It is very important to file your appeal on time or you may lose your opportunity to continue fighting your case. Appeals are difficult. It is important to get legal help if you are in removal proceedings.
For more information on the removal process see The National Immigrant Justice Center’s Packet About Detention, Deportation, and Defenses Under U.S. Immigration Law.
Updated: September 2017