After you receive a Notice to Appear (NTA) from DHS, your case will be assigned an immigration judge for the immigration cases. Your lawyer will request a hearing date and then work to obtain your release.
Immigration judges are under pressure to complete cases quickly. However, they often lack the resources to do so.
Asylum
Asylum is a form of protection granted when an individual fears persecution in their home country based on their nationality, religion, race or membership in a social group. The asylum process requires proof of past or future persecution and a fear that they would be subject to violence in their home country if returned there.
Asylum seekers can apply for asylum either at a port of entry or in removal proceedings. Those applying for asylum at the border must undergo a screening interview with an asylum officer who may refer their case to an immigration judge.
People seeking asylum often face long wait times for their cases to be heard. A large backlog of asylum cases, including those brought by unaccompanied children, can make it difficult for people to gain legal representation. Those without representation are five times less likely to win their asylum cases. The Biden Administration’s proposed rule imposing a rebuttable presumption against eligibility for asylum if migrants transit through a third country is especially problematic.
Deportation
Noncitizens placed into deportation proceedings face the possibility that a judge will order them removed, or deported, from the United States. However, many individuals can request some form of “relief from removal” that would allow them to remain in the country.
In order to qualify for relief, an individual must demonstrate that they will suffer “exceptional and unusual hardship” if they are forced to return to their home countries. For example, a mother who is separated from her children may be able to prove this to avoid being deported.
Individuals who are placed into removal proceedings will be incarcerated until their hearings are completed. Those that are not granted relief will be ordered to depart the country, either voluntarily or after receiving an ICE “bag and baggage” notice. Immigration judges will often hold a short hearing to determine whether or not an individual should be released on bond from ICE custody. During these hearings, ICE will either agree that the person is eligible for release or argue that they are a flight risk or danger to the community and should be detained until their hearings are complete.
Bond Hearings
Immigration courts hear cases involving noncitizens who are deported or subject to removal proceedings initiated by ICE or CBP. Unlike criminal court, the rules of evidence are far less strict in immigration court hearings. Thus, hearsay that would not be admissible in other types of litigation may be admissible at an asylum hearing or a bond hearing.
Immigration judges are often under tremendous pressure from a higher authority to move cases quickly and to keep the backlog at bay. This can result in rushed decisions and missed opportunities to secure relief.
It is helpful to have a legal brief prepared in advance of the hearing date. It should address the issues, challenges and relevant facts of the case. If the client has a strong argument for relief, the attorney should consider calling an expert witness. Generally, the expert should testify via videoconference or by phone. It is also important to dress professionally for the hearing and to arrive a few minutes early to ensure that you are able to get into the building.
Representation
Students represent individuals in immigration court and prepare and file appeals in cases that go to the Board of Immigration Appeals. Many clients are women and girls seeking asylum or other forms of humanitarian protection. These are particularly complicated cases requiring attorneys who are skilled at both the sensitive cultural issues and the often unexplored territory of gender-based immigration law. Having an attorney can make the difference between staying in the country and being separated from loved ones, community, and a life that was built here.
While nationwide representation rates fluctuate on a monthly basis, recent data reveals that the odds of an individual appearing with counsel vary by a variety of factors including detention status and nationality. The Immigration Court Self-Help Legal Resource Center can assist individuals who are not represented or who are representing themselves and provides information about locating a representative. Accredited representatives can be attorneys or, in limited circumstances, law students and graduates, or certain reputable individuals (not notarios). A complete list of pro bono legal service providers is available on the Executive Office for Immigration Review website.
