Deportation is the legal process for compelling a person’s departure from the United States due to the individual’s violation of the immigration laws. While this proceeding has many similarities to a criminal trial, it is not a criminal matter. In 1996, the deportation proceeding was renamed as “removal proceedings,” but the two terms have practically the same meaning and process.

Important Rights in Removal Proceedings

A person in removal proceedings has certain legal rights. As in a criminal case, a judge conducts the proceedings and decides whether the person charged should be removed from the United States. There is no jury in a removal case. The individual has the right to be advised of immigration violations charged by the government (represented by the BCIS) in a document called the “Notice to Appear” and to challenge the legality of those charges. Removal proceedings are adversarial in nature. The BCIS is represented by an attorney whose job is to see that the immigration laws are enforced against the individual charged. Therefore, one of the most important rights given to a person in removal proceedings is the right to be represented and assisted by an attorney of the person’s choosing. Unlike in a criminal case, the government does not have to provide an attorney free of charge. As the immigration laws are complicated and the defenses against removal from the U.S. are not commonly understood, the immigration judge will give an individual a reasonable opportunity to find a lawyer to assist him or her.

Arrest and Bond

The BCIS may arrest an individual who has broken the immigration laws and keep that person in jail until either the judge orders the person released or the individual is able to pay a bond. A bond, which is money deposited by individual charged or his family or agent, and held by the BCIS until the proceedings are concluded, acts to guarantee that the person charged will return to the court when required. The BCIS determines the amount of the bond based on the seriousness of the charges (in many cases involving those who have committed crimes, there is no bond at all) but the immigration judge may alter the amount when the removal proceedings are started. If the individual appears in court as the judge orders, the bond money will be returned by the BCIS. Failure to appear in count even on one occasion may result in the judge ordering the person to be removed and the bond money is forfeited. However, If the BCIS does not arrest an individual (and a large percentage of removal cases does not involve an BCIS arrest), there is generally no need for a bond.

Master and Regular Calender Hearings

For those who are not detained by the BCIS prior to the beginning of removal proceedings, the first step in the process is called a “master calendar” hearing. This is generally the person’s first appearance in immigration court and he or she is given the opportunity to respond to the facts and charges in the Notice to Appear. The immigration judge also has the opportunity to review the nature of the case, the possible defenses to the charges, and individual’s legal options for remaining in this country. The judge may then schedule the case to proceed to an individual or “regular” hearing in which the person’s defenses to removal are considered and resolved.

There are several ways in which a person who is charged in removal proceedings may establish a right to remain in the United States despite a violation of some of the immigration laws. Each of these defenses depends on very specific facts and legal conditions which should be reviewed with a knowledgeable attorney. With over 45 years of experience, including litigation of several landmark deportation cases, the attorneys of Simmons and Ungar are ready and able to help with your court case.

THE PRECEDING IS A BRIEF OVERVIEW NOT INTENDED TO CONSTITUTE LEGAL ADVICE. PLEASE CONSULT LEGAL COUNSEL FOR LEGAL ADVICE REGARDING ANY SPECIFIC CASE.