Any time a noncitizen is arrested by immigration and Customs Enforcement, the process can be nerve wracking. This stress is magnified when the person has been in the United States for a long period of time, has family in the United States, is a student or has steady employment in the United States. What is actually to be expected when a noncitizen comes in contact with Immigration?
First, please remember that each and every situation is unique and nothing can substitute for an individualized consultation with an experienced attorney. Second, the information here is an introduction to a basic process, which may not be accurate if a person has been deported previously, entered the United States multiple times, or been placed in removal proceedings in immigration court in the past.
When a noncitizen is arrested, the Department of Homeland Security will make a determination of whether that person should be released pending immigration court or whether they should be detained. DHS officials decide whether a person is a danger to the community or a flight risk by examining factors such as length of time in the United States, family ties to the United States, employment history and criminal record. If DHS determines a person is to be held without bond, normally, but not always, the individual can ask an immigration judge to consider a bond.
Regardless of whether the individual is released or detained, DHS will serve the noncitizen with a Notice to Appear, or a charging document in immigration court, which lays out factual allegations which DHS believes establishes that the noncitizen should be removed from the United States as well as the immigration statute under which DHS believes the noncitizen should be removed. In front of an immigration judge, the noncitizen will enter pleadings to the charging document by admitting or denying the factual allegations and denying or conceding the charge of removability.
If the immigration judge determines that removability is established, the proceedings move to what is known as the relief stage. This is where the noncitizen has an opportunity to show the judge why they should be allowed to remain in the United States by applying for various forms of relief, such as Cancellation of Removal or Asylum. Whether a person is eligible to apply for relief and how to present the best case is extremely individual and should be determined by a consultation with a licensed attorney.
At the end of the immigration case, the immigration judge with either close the case or will enter an order of removal at which time the parties will choose whether to appeal the decision or accept it.
This process is extremely complex and can be very stressful on a noncitizen and their family. Unlike in criminal court, a noncitizen in immigration court is not entitled to an attorney. If they cannot hire an attorney to represent them, the noncitizen must represent themselves. The immigration system is very complex and unforgiving… there is no substitute for an experienced immigration attorney to represent you in your case.