LEGAL GUIDE
Written by attorney David H. Stoller | Mar 16, 2012

Immigration Court Overview

This legal guide will discuss the basics about Immigration Court. The Immigration Court is an administrative agency whose objective is to process charging documents from the Department of Homeland Security (“DHS") relating to foreign nationals who the government believes are subject to removal and deportation from the United States. The Immigration Court performs its work through Immigration Judges (“IJ") and administrative Court personnel and in proceedings held before this tribunal, the DHS is represented by an attorney referred to as an Assistant Chief Counsel (“ACC"). The Immigration Court and the DHS are separate agencies and one is in no way controlled by the other. An IJ is an independent decision maker who is not employed by the DHS.

Proceedings before the Immigration Court are instituted upon its receipt of a charging document from the DHS. The most common grounds used to charge an individual with being subject to removal are violations of one’s immigration status, criminal convictions and engaging in fraudulent activity relating to the immigration process (such as entering a sham marriage to obtain immigration benefits.)

Once a charging document is received, the Court will schedule a “master calendar" hearing (“MCH"). A MCH is generally held once a week by each IJ and these hearing dates can often include fifty or more cases. During the MCH, the IJ will review the status of a case and determine what needs to be done to complete its review. The IJ will schedule deadlines and further hearings as deemed necessary.

A foreign national who is charged as being subject to deportation is not necessarily going to be deported. Rather, the IJ will determine if an individual is subject to deportation from the US and then determine if the individual is eligible for any form of relief from removal which may permit him to remain in the US despite being subject to removal as charged by the DHS.

Various forms of relief from removal can be considered before the Immigration Court. These can include : political asylum, withholding of removal, adjustment of status, cancellation of removal for non-residents, cancellation of removal for residents, voluntary departure and a myriad of other relief which may permit a foreign national to remain in the US on either a temporary or permanent basis.

An “individual calendar hearing" (“ICH") is scheduled when an IJ needs to have time dedicated to one case and to hear testimony or consider evidence. During a MCH, there are literally dozens of cases that will be called and the IJ does not have a lot of time to consider complicated issues. When issues arise regarding whether someone is subject to deportation or when an individual applies for some type of relief from deportation, the IJ will schedule an ICH. The ICH provides a period of time dedicated to consideration of one case and the time provided can vary from one half hour to an entire day (or sometimes even more).

During any proceeding before the Immigration Court, an individual has the right to be represented. While one has the right to have an attorney, the government will not provide one. Anyone appearing before an IJ has the right to present evidence, to review evidence presented against him, to call witnesses, and to cross examine witnesses brought against him. Either side to the proceeding (DHS or the foreign national) has the right to appeal any decision made by the IJ to the Board of Immigration Appeals.

An important consideration is that the government will have an attorney at each of the hearings called before the IJ. The ACC’s function is to ensure that the truth is told in proceedings before the IJ and to present evidence which the government believes relevant and important to consideration as to whether someone can remain in the US. Unlike hearings before immigration officers, the hearings before an IJ are adversarial. Both sides can be represented by a trained lawyer and this generally helps the IJ determine the issues brought before the Court and resolve the same.

As with any process requesting immigration benefits in the US, having a trained and knowledgeable attorney working for you is often very helpful. Ultimately, the IJ and the government attorney will determine what can and should be done in your case if you do not hire the services of an attorney. Keeping in mind that the IJ"s decision may have a lifelong effect on one’s authorization to remain in the US, hiring an attorney who can adequately and competently handle your case is one of the more important considerations one should have when served with notice that removal proceedings have been instituted.

In order to appear before the Immigration Court, an individual must either be a licensed attorney or “accredited representative." If someone tells you that he can represent you and then does not speak on your behalf before the Court, something is not right. If you have any doubts on one’s eligibility to represent you before the Court, ask for such qualifications in writing. This is a question that any reputable immigration service provider should be able to answer without hesitation.

Nothing is more important than making an informed decision and it is up to you to see that you receive sufficient information about your case before you hire an attorney. Ask questions and demand answers. If we can be of any assistance in helping you or your loved ones understand what can be done to assist anyone with their journey through the difficulties of US immigration law it would be our pleasure indeed to answer your questions. Good luck.

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