Removal Defense

Questions an Immigration Court Addresses

An Immigration Court is an administrative court within the Department of Justice. With more than 60 immigration courts throughout the United States, each court adjudicates immigration cases to resolve certain issues. The three main questions addressed by an immigration court are:

1. Whether an individual should be allowed to remain in the United States, which means determining whether the person is admissible or removable or whether the person is a U.S. citizen;
2. Whether a person's application for relief from deportation or removal – like an asylum case or an application for an immigration benefit (e.g., a green card) – should be granted; or
3. Whether a person detained should be allowed to post bond, or whether the bond amount should be modified.

In most cases before an immigration court, the matter involves a non-citizen charged by the Department of Homeland Security for a violation of immigration law.

Types of Cases before Immigration Courts

The immigration court hears a wide range of cases related to immigration law. Some of the most common types of cases that go before the immigration court include:

• Asylum Cases: Individuals who fear persecution in their home country due to their race, religion, nationality, political opinion, or membership in a particular social group may apply for asylum in the United States. Asylum cases are typically heard by the immigration court.
• Adjustment of Status: Individuals in the United States temporarily may be eligible to adjust their status to become lawful permanent residents. These cases are often heard in immigration court.
• Bond Hearings: When an individual is detained by DHS, they may have the opportunity to request a bond hearing to determine whether they can be released from detention while their case is pending.
• Cancellation of Removal: Individuals facing deportation but who have been living in the United States for a certain period of time (typically 10 years for undocumented immigrants and 7 years for permanent residents) may be eligible for cancellation of removal, which allows them to remain in the United States.
• Convention Against Torture (CAT): Immigrants who fear they will be tortured if they are returned to their country of origin, birth, or citizenship, may qualify for relief under CAT if they can prove the likelihood of the same.
• Removal Proceedings: These are cases where the Department of Homeland Security (DHS) seeks to deport an individual from the United States.
• Special Immigrant Juvenile Status. Immigrant children may qualify for a green card or avoid deportation if they have been abused, abandoned, or neglected.
• Violence Against Women Act (VAWA): Family members and children who have been subjected to abuse by a spouse or parent may qualify for legal status under VAWA if the abusive spouse or parent is a legal permanent resident or U.S. citizen.
• Withholding of Removal: Immigrants who fear for their safety or freedom if they return to their country of origin may be able to obtain relief (similar to asylum) if they have been in the United States for more than a year.
• Appeals: Individuals who have received an unfavorable decision from a USCIS officer or immigration judge may appeal their case to the Board of Immigration Appeals (BIA), which is also part of the immigration court system.

The immigration court is not part of the criminal justice system and does not handle criminal cases. It is also not a part of the civil system and does not handle lawsuits or other civil matters and so does not follow the same procedures or timelines. The immigration court is specific only to immigration matters and has its own procedures and timelines.

What to Expect at an Immigration Hearing

During an immigration hearing, the immigration judge will preside over the proceedings and make decisions based on the evidence and arguments presented by the parties involved. 

The following is a summary of the general flow of an immigration hearing. 

1. Preliminary Matters. The judge will begin by identifying the parties, reviewing any relevant documents, and explaining the purpose of the hearing.
2. Testimony and Evidence. The parties will present their case by offering evidence, documents, and witness testimony. The judge will ask questions to clarify any issues or inconsistencies in the evidence.
3. Legal Arguments. The parties will also present legal arguments, citing relevant laws and regulations, to support their position.
4. Closing Argument. After all the evidence has been presented, the parties will have an opportunity to make closing arguments summarizing their case.
5. Decision. The judge will then make a decision based on the evidence and arguments presented. If the case involves an individual's eligibility to remain in the United States, the judge may either grant relief or order the individual to be removed from the country.

Immigration hearings can be complex and involve many legal and factual issues. The parties may be represented by attorneys, and interpreters may be present if needed to assist with communication.

Legal Representation in an Immigration Court

Individuals who appear before the immigration court have the right to be represented by an attorney. In fact, it's highly recommended that you seek the assistance of an experienced immigration attorney, as the immigration court proceedings can be complex and the consequences of an adverse decision can be severe, such as deportation or denial of a visa application. Plus, an attorney can help you understand your legal options, prepare your case, and present the strongest possible arguments to the judge.

An experienced immigration lawyer can also help you:

• Identify any potential legal issues or pitfalls in your case
• Gather evidence to support your case
• Develop a legal strategy tailored to your individual circumstances
• Ensure that your rights are protected throughout the court process, such as ensuring that you are not coerced into signing a voluntary departure or waiving your rights to appeal

If you cannot afford an attorney, you may be able to obtain free or low-cost legal representation from a non-profit organization, legal aid society, or pro bono attorney. You may also be able to get a list of pro bono legal service providers in your area from the immigration court.

Contact a New Mexico Immigration Attorney Today

While having an attorney is not required, it can greatly increase your chances of success in the immigration court. An attorney can help you prepare your case, gather evidence, present legal arguments, and protect your rights during the hearing.

At the Law Office of Scott D. Weaver, we will review your case and look for all possible solutions. If you qualify for a particular program, we will identify and prepare for it. If another type of relief applies, we will strategize and gather supporting documentation to build your case. Speak to me today by filling out the online form or calling me at 505-218-7265 to schedule a consultation and to discover what legal options are available.