Immigration Removal Process and Deportation Proceedings
An immigrant arriving in the United States faces numerous challenges when adjusting to life in his new homeland. Not only does he have to provide for himself and his family, he must learn a new language and adapt to a new culture to achieve the “American Dream.” A removal proceeding can be one of the most stressful experiences in an immigrant’s life and removal from the United States for any reason can shatter his aspirations.
Professor Peter Markowitz, a law professor at the Benjamin N. Cardozo School of Law, titled one of his articles “Deportation is Different” putting his own take on one of the most famous phrases in United States Supreme Court jurisprudence, “Death is different…” Professor Markowitz came up with this title because the immigration removal process is difficult to classify. What does the immigration removal process consist of and how is it “different”?
A removal, or deportation, proceeding is an administrative review under the jurisdiction of the Executive Office for Immigration Review. The proceeding consists of two components: a master calendar hearing and an individual merits hearing. These proceedings are held before immigration courts or the Board of Immigration Appeals. Typically, proceedings are conducted in person, but they can be conducted by video conference or telephone. There is an estimated backlog of 300,000 deportation cases being handled by the nation’s nearly 300 immigration judges. Immigration judges conduct over 125,000 hearings annually wherein trial judges and immigrants meet over teleconference, rather than in person, to alleviate the strain on the administrative system.
A United States Citizenship and Immigration Services officer issues to an alien a Notice to Appear before an immigration court to start a removal proceeding. The notice specifies the following information:
· The nature of the proceedings against the alien;
· The legal authority under which the proceedings are conducted;
· The acts or conduct alleged to be in violation of law;
· The charges and the statutory provisions alleged to have been violated; and
· The date on which the alien must appear before an immigration judge.
Earlier in our nation’s immigration law history, judges had great discretion to prevent deportation, but recent immigration reforms have expanded the class of deportable offenses and limited the authority of judges to prevent deportation.
There are numerous grounds for deportation according to Section 237(a) of the Immigration and Nationality Act, that include:
· Crimes of moral turpitude
· Aggravated felonies;
· Multiple criminal convictions;
· Convictions for possession of controlled substances;
· Falsification of immigration documents;
· Crimes of domestic violence or a violation of a protection order
Once the government files the notice with the grounds for deportation, a master calendar hearing is scheduled. If the immigrant fails to attend, the court can issue an automatic order of removal and can ban him from returning to the U.S. for ten years. The master calendar hearing operates like a criminal arraignment, where the immigration judge informs the immigrant of the alleged violations and his rights (including the right to counsel), and provides him with an opportunity to respond to the government’s charge.
After the master calendar hearing, an individual merits hearing comes next. A merits hearing operates like a trial, as the government submits evidence to support a removal order and the alien/defendant can present his application for relief from removal.
At the individual merits hearing, the Immigration and Customs Enforcement attorney bears the initial burden to prove that deportation is legally required. The alien can testify on his own behalf, present exhibits, and introduce evidence to seek relief. Once both sides conclude their arguments, the immigration judge will issue a decision for either granting relief from removal or ordering removal.
Either party can appeal within thirty days to the federal circuit courts of appeals. If the judge has approved deportation, an appeal provides a temporary stay of the order of removal, meaning that the government cannot remove a person while the appeal is pending.
The Supreme Court has ruled that deportation proceedings do not carry the same due process protections as do criminal proceedings.” Though removal proceedings can have severe consequences, they are considered civil actions for two reasons.
First, unlike the judge or jury in a criminal trial, an immigration law judge does not adjudicate guilt or punish someone for crimes. Second, the purpose of the deportation proceeding is to look prospectively to the alien’s right to remain in the United States and not to punish someone for past conduct. Past conduct is only relevant insofar as it may shed light on an alien’s right to remain in the country.
The fact that removal proceedings are civil in nature has considerable consequences for both the alien and the government. The first is that there is no Sixth Amendment right to government-appointed counsel during the master calendar hearing or the individual merits hearing. In one case, an El Salvadorian citizen entered the United States, but was denied asylum status, and his appeal to the Board of Immigration Appeals was dismissed. The alien defendant brought an action in another court to invalidate his denial of asylum, arguing that he was denied his Sixth Amendment rights because he was not represented by counsel. The reviewing court disagreed with this argument, reasoning that there is no right to counsel in deportation proceedings because the immigration removal proceeding is “purely a civil action to determine eligibility to remain in this country” and not a criminal action to punish past transgressions. Though an alien may retain counsel, the government is not constitutionally required to provide it.
The second consequence of a removal proceeding’s civil nature is that it is governed by relaxed rules of evidence. In federal criminal proceedings, strict evidentiary rules limit the scope of cross-examination and set forth rules for the presentation of evidence and the questioning of witnesses. In a removal proceeding, however, both the alien and ICE attorneys can engage in potentially “boundless” cross-examination of witnesses because of the lack of formal rules of evidence. Furthermore, immigration laws make admissible “any oral or written statement that is material and relevant to any issue in the case previously made by the (alien) or any other person during any investigation, examination, hearing, or trial,” to contradict any testimony or undermine the alien’s evidence in deportation proceedings. Admitting these kinds of prior statements and evidence is unheard of in many types of legal proceeding.
As Professor Markowitz made clear, deportation is in fact “different.” The process is unlike any other, not only from an emotional standpoint, but from a legal perspective as well.
 Gardner v. Florida, 430 U.S. 349, (1977).
 Peter Markowitz, “Deportation Is Different,” 13 U. Pa. J. Const. L. 1299, (2011).
 Sakima Kelly, “Immigration Benefits in a Removal Proceeding,” https://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/immigration_benefits_in_a_removal_proceeding.html.
 Stephanie Gleason, Number of Pending US Immigration Cases Climbs-Report, Wall St. J., June 7, 2011, http://online.wsj.com/article/BT-CO-20110607-712358.html.
 Ingrid V. Eagly, “Remote Adjudication in Immigration,” 109 Nw. U.L. Rev. 933, (2015).
 8 USCS § 1229.
 Adriane Meneses. “The Deportation of Lawful Permanent Residents for Old and Minor Crimes: Restoring Judicial Review, Ending Retroactivity, and Recognizing Deportation as Punishment,” 14 SCHOLAR 767, (2012).
 Nunez v. Holder, 594 F.3d 1124, 1127 (9th Cir. 2010).
 Thomas A. Aleinikoff et al., Immigration Process and Policy 278 (6th ed. 2008).
 8 C.F.R. § 1240.10(a)(1)-(3).
 Fong Yue Ting v. United States, 149 U.S. 698, (1893).
 Abel v. United States, 362 U.S. 217, (1960).
 Immigration & Naturalization Service v. Lopez-Mendoza, 104 S. Ct. 3479, (1984).
 Vides-Vides v. Immigration & Naturalization Service, 783 F.2d 1463, (1986).
 8 C.F.R. § 1240.7(a) (2007).
 Won Kidane, “Revisiting the Rules of Procedure and Evidence Applicable in Adversarial Administrative Deportation Proceedings: Lessons From the Department of Labor Rules of Evidence,” 57 Cath. U.L. Rev. 93, (2007).