Representation in Removal Proceedings

By Attorneys Robert Reeves and Jeremiah Johnson

One of the more frightening moments in an immigrant’s life is the prospect of being removed from the United States and separated from friends and family.  However, before the Immigration Service can physically remove a person from the United States, the Service must first place that person in Immigration Court.  Once in Immigration Court, during a process know as “removal proceedings,” a Government attorney will attempt to convince an Immigration Judge to order the alien removed.  However, the alien has the opportunity, and the right, to obtain an attorney and contest whether in fact he is removable and if so whether there is any form of relief that will permit him to remain in the United States.

To begin the removal proceedings, Immigration & Customs Enforcement (“ICE”) will issue a “Notice to Appear” (“NTA”) charging an alien with being removable from the United States. There are many grounds for removing an alien from the United States including the commission of a crime, overstaying a non-immigrant visa, or even entering the United States without a visa.  ICE may also issue an NTA if the alien misrepresented some material fact or used fraudulent documents in order to obtain an immigration benefit – even if the misrepresentation occurred many years ago.  Once the NTA is filed with Immigration Court, the alien will be scheduled to appear for what is called a “Master Hearing” to determine the next steps.  This first hearing is critical for the alien and can set the foundation for either a successful defense or a disappointing result.  

During these proceedings, an attorney with the Office of the Chief Counsel will represent the Immigration Service.  This government attorney is responsible for establishing the alien is removable from the United States.  Although an Immigration Judge will receive and weigh evidence from both the government attorney and the alien, the Immigration Judge will not prepare or present the alien’s case.  For that, an alien has the opportunity, and the right to obtain an attorney of their own at his or her own expense.  A well-presented case by an experienced ICE attorney must be met by a better-prepared case by the alien’s representative to ensure an alien can remain in the United States.

As such, it is important to seek a highly skilled and knowledgeable immigration attorney.  An experienced attorney will either deny the charges of removablity in what is known as a Contested Master Hearing or may seek relief from removal at an Individual Hearing – or both.  However, just because a person may be eligible for relief does not mean they will win. It is necessary to present sufficient documentary evidence and oral testimony to convince the Immigration Judge that the alien is eligible and deserving for that relief. The evidence must clearly convince the Immigration Judge that the alien meets all the elements for the relief as set forth in the Immigration and Nationality Act.  The alien must also convince the Court to exercise favorable discretion and grant the relief.  In other words, an alien must present additional evidence to show the Judge why, despite having overstayed or lied or committed a crime, he or she should be given a second chance at a life in America.

Statistics indicate that the majority of cases in immigration court are denied. These statistics also show that aliens who were represented by counsel were more successful than those who attempted to represent themselves.  The reasons are obvious.  In addition to knowing what elements have to be proven, an experienced and knowledgeable attorney also knows the most effective way to present that evidence. A skilled attorney knows the most persuasive evidence to prove extreme or exceptional and extremely unusual hardship, knows how to present evidence of rehabilitation or good moral character, and knows how to present negative as well as positive facts.

It may be tempting to try to save money and represent oneself in immigration court or choose an inexperienced lawyer, but the price of losing the case is much higher than the costs of a good attorney.  Do not place your life and your family’s future in the hands of an inexperienced attorney.  In life it may be good to take risks, but in immigration it is not. You and your family’s future depends on it.  To be sure, the government will be represented by an experienced attorney; but perhaps more importantly, will you?