Deportation as a standalone concept ended in 1997 and currently the process is called “removal.” But the terms, in general, are used interchangeably, although an experienced attorney will know how the laws differ if you are in “removal” versus “deportation” proceedings. “Removal” covers both the old exclusion process, and the old deportation process and rolls into one overarching concept.
The deportation (or “removal”) process is initiated by the service of a document to a person (or “Respondent”) called a Notice To Appear (NTA). The Notice to Appear explains what the allegations or “charges” against the person. For example, the NTA may state that the person has committed a crime, entered illegally, entered legally but has overstayed his or her status, or any other potential scenarios. It will list under what sections of the Immigration and Nationality Act the person is deemed to be removable, deportable or inadmissible.
The NTA will also list either where and when the initial court hearing will take place or state that the initial court hearing will take place at a place and time to be announced at a later date.
The Master Calendar Hearing
The first hearing that a respondent goes to is called a “Master Calendar Hearing,” and is generally in a room full of other people who are there for their own Master Calendar Hearing. Master Calendar Hearings are usually scheduled for the purpose of the respondent and his or her attorney to confirm or deny the allegations and charges, and review with court what type of relief from removal the respondent will be seeking.
Often, at the initial Master Calendar appearance the respondent’s lawyer will ask for additional time to research the grounds of removal. There may be three, four, or even more Master Calendar Hearings before the respondent or his or her lawyer finally tells the Judge what it is they would like to do, and what type of relief they are seeking. Sometimes if the person does not have an attorney the Judge will reschedule the Master Calendar Hearing and give him or her time to find an attorney.
The Individual Calendar Hearing
The eventual trial or hearing that is held is called either a Regular Calendar or Individual Calendar Hearing (“Regular Calendar” is the older term, and “Individual Calendar” is the more recent title). The Individual Calendar Haring is the trial at which the respondent has the ability to apply for relief. Relief can come in many different forms. For example, a person may try to apply for asylum, adjustment of status, or any other form of relief available to his or her specific set of facts. Of course, the Department of Homeland Security (DHS), represented by the attorneys at Immigration and Customs Enforcement (ICE), has the burden of proof. That is to say, DHS must show that they have the correct person and that this person is not a Lawful, Permanent Resident or U.S. citizen, and that there is some ground for deportation or excludability to show that the person is removable.
Once the government carries that burden, the respondent must carry his or her burden of proof to show that he or she merits, either under the law or through the exercise of the judge’s discretion, the relief sought and he or she can remain in the U.S.
If I don’t have a good case, will I just be deported?
Over the course of time, the Department of Homeland Security has finally come to realize that it cannot, despite its’ most earnest attempts, actually deport every single person who is in the U.S. without lawful status.
In fact, the government has apparently finally realized that it’s probably not a good idea to deport every single person who may not be here with status. For example,
A lot of undocumented adults have U.S. citizen children. They are working and caring for their children and deporting those parents often means that the children are applying for state and federal welfare benefits.
Many of undocumented adults have U.S. citizen children. They are working and caring for those children and deporting those parents often means that the children would be force to apply for state and federal welfare benefits.
Thus, the government has, over time, come up with a series of priorities, or “Tiers.”
- Tier 1, respondents, are those most dangerous to society, i.e., those the government most wants to remove. Priority 1 includes actual or suspected terrorists, those apprehended while attempting to illegally enter the S., those who have been convicted of being in a criminal street gang and aggravated felons.
- Tier 2, consists of those convicted of 3 or more misdemeanor offenses, those convicted of a “significant misdemeanor”, such as domestic violence, sexual abuse, burglary, unlawful possession or use of a firearm, etc., those apprehended in the U.S. after unlawfully entering or reentering the country and people who have significantly abused the visa or the visa waiver programs.
- Tier 3, respondents are the 3rd and lowest priority for apprehension and removal. These include who have been issued a final order of removal on or after January 1, 2014; such people should generally be removed unless they qualify for relief from removal or, if in the judgment of an immigration officer the person is not a threat to the integrity of the immigration system or there are factor suggesting he or she should not be an enforcement priority.
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