Judge's Decision in Immigration Court: How Long It Will Take to Get
Step-by-step overview of what will happen during immigration court proceedings and how long each stage is likely to take.
While immigration proceedings can seem highly technical and confusing, there is definitely a method underlying the “madness.” This article will walk you through the timeline for typical immigration court proceedings and give you pointers on what to expect.
Remember, however, that removal and deportation cases almost always hinge on nuances of the law and the specifics of the particular case. There is no “typical” immigration court case, and yours could take months or even years to reach a resolution. Consult a licensed immigration attorney right away if you face immigration court proceedings.
What Happens at Each Stage of Immigration Court Proceedings
The overall structure of hearings before the Immigration Court is, in reality, fairly simple. The Executive Office for Immigration Review. more commonly known as the Immigration Court, administers immigration proceedings in roughly three stages: initial hearings, known as “Master Calendar Hearings;” hearings focused on the individual, known as “Individual Hearings;” and post-hearing proceedings for anyone granted relief or for orders of voluntary departure or removal.
Cases involving claims of asylum follow a separate, strictly scheduled time frame required by the law. We will discuss this later below.
Things begin when you are issued a document called a “Notice to Appear,” or “NTA” for short. The NTA is a charging document, a formal accusation against a person that he or she entered or is present in the United States without authorization.
The NTA is highly important: Not only does it state the specific legal reasons why U.S. immigration authorities believe that you are in the U.S. unlawfully, it also puts you on notice that you will be scheduled for immigration proceedings before the immigration court.
If you have received an NTA charging you as removable or deportable, you are called the “Respondent.” In the past, the NTA itself would notify respondents of their first scheduled court hearing. Today, with immigration courts facing busy case dockets, the courts send follow-up hearing notices to recipients of NTAs.
If you have received an NTA, you can expect to receive a follow-up notice from the immigration court within about one week to one month. If you have been detained by immigration authorities, the immigration courts take care to schedule your first hearing and send a hearing notice as soon as possible. You should carefully note the date and time of your first hearing! If you miss any court hearing, you could forfeit any kind of immigration relief and be ordered removed from the United States.
Initial Issues at the Master Calendar Hearing
Your first hearing is called a “Master Calendar Hearing,” or simply “MCH.” During the MCH, you (and the prosecuting government attorney) can address any initial issues in your case. For example, you could be seeking a relatively minor request to change venue to another court location if you reside somewhere far from the court. You could also make a serious challenge against the initial accusations made in the NTA to try to stop proceedings entirely.
The MCH is typically very short, lasting approximately 15 minutes. The issues reviewed at an MCH are, however, highly important to any case. We very much recommend you consult an immigration attorney on whether you have any initial issues to address.
Immigration judges also have the authority to “continue” proceedings, or reschedule the MCH for a later date, if certain issues need time to resolve. For example, immigration judges are usually willing to allow respondents extra time to try to retain legal counsel. In some cases, the respondent might have a pending immigrant petition, which might afford relief from the removal proceedings; immigration judges are sometimes willing to allow time for these petitions to complete processing.
Depending on the court’s docket and scheduling, a case could be continued to the next month, or to the next year. depending on the underlying reasons for the continuance and the open dates available.
If your case contains no further initial issues to review, and if you, the government prosecution, and the court view your case as ripe to proceed, the court will then schedule your Individual Hearing.
Focusing on Your Case: Individual Hearings
Individual Hearings are much as they sound: The court focuses on your individual case to determine whether you are eligible for any forms of immigration relief and, ultimately, whether you will be allowed to stay in the U.S. or not. As with the MCH, Individual Hearings are scheduled as soon as practically possible by the court.
As court dockets become increasingly full, immigration courts are scheduling individual hearings at least six months out, if not longer. Depending on the facts in your case, you may be able to reach a settlement or other agreement with the prosecuting government attorney that might end proceedings sooner. Regardless, you should definitely consult an immigration attorney who can assist you at this stage.
Because Individual Hearings give full attention to a specific respondent’s case, they typically take much longer than the 15-minute Master Calendar Hearings. The immigration court will schedule the Individual Hearing for a four-hour block, either in the court’s morning or afternoon session. During the hearing, the court will hear testimony and review evidence presented by the respondent and from the government prosecution. After relevant testimony and evidence is presented, the respondent and the prosecution are given opportunities to make final legal arguments as to why the respondent should or should not be eligible for relief.
In some cases, the testimony and evidence presentation can take much longer than four hours, and other related issues can certainly pop up that delay proceedings. In such cases, the court is required to
continue the Individual Hearing to a later date. Of course, such a rescheduling is subject to the court’s busy docket schedule and to the availability of the participants. If your case requires a large amount of evidence and testimony, your individual hearings might take a year to resolve, if not longer.
Once all of the evidence and presentation of testimony is complete and the legal arguments have been made, the immigration judge will render a decision based on legal conclusions. In most cases, the judge will state the decision immediately in open court. In some rare cases, the judge will choose to continue proceedings in order to craft a written decision. In either case, your hearings will have reached an end. However, this is not necessarily the end of your proceedings.
Post-Decision Activity: Fighting On Through Appeals
Either you or the government can choose to challenge or appeal an immigration judge’s decision based on a belief that the decision was made in error. This can be done through Motions to Reopen or Motions to Reconsider made to the immigration court or through an appeal directly to the Board of Immigration Appeals or “BIA.”
Motions to Reopen a case are generally filed when one or both of the parties to a case have new facts to present that were not previously available but are relevant to the case. A Motion to Reopen must usually be filed within 90 days of an immigration judge’s final decision, but some exceptions do exist.
Motions to Reconsider are sought usually when either party believes that the court interpreted the law incorrectly. Motions to Reconsider must usually be filed within 30 days of the court’s decision, but, again, exceptions can apply. Consult an immigration attorney to find out whether either of these motions might aid your case.
You may also lodge an appeal directly with the BIA, so long as your appeal is filed within 30 days of the court’s decision. The BIA is the appellate body having direct review over the immigration courts. Although the BIA is not required to adjudicate appeals within a certain timeframe, the BIA strives to issue decisions as efficiently as possible. The BIA states that it generally seeks to adjudicate cases in no more than 180 days.
If you received an unfavorable decision in your case and want to fight on, or if the prosecution seeks to appeal a decision in your favor, you could be facing potentially six months or more of time to your case. There are also possible routes to appeal BIA decisions through the federal appellate courts, which could add considerable time and expense to your case. Definitely consult an immigration attorney if you are considering the long appeals process.
Applying for Asylum: Expedited Scheduling
If you are seeking refuge in the U.S. by applying for asylum, you may find yourself in immigration court as part of the process. Under immigration regulations, the asylum process follows a separate, speedier, schedule than other types of proceedings before the court. Let’s take a look at this process.
Persons seeking asylum can apply in two ways: 1) affirmatively, meaning that the applicant voluntarily sends in an application for asylum without being prompted by immigration authorities, or 2) defensively, where an applicant is charged in an NTA as being removable, and wishes to apply for asylum in immigration court as a form of relief.
For affirmative applications, U.S. immigration authorities first refer the applicant to an Asylum Officer, who is charged with conducting an asylum interview no later than 45 days from the date the application is submitted. During the interview, the Asylum Officer must determine whether the applicant has a credible case for asylum. The Officer is required to make a decision within 180 days from the date the asylum application was submitted. In some cases, the Officer can approve asylum without any further proceedings. However, in other cases, the Officer can refer the asylum applicant to further proceedings before the immigration court.
For either affirmative or defensive asylum applications, once an asylum applicant reaches the immigration court, the immigration judge is bound to a strict schedule, set under regulations and the court’s practice manual. The court must first make a separate finding on whether the asylum applicant has a credible fear of being persecuted in her or his home country. This finding must be done within 24 hours and no later than seven days.
The court must then hold an initial hearing on the asylum application within 45 days of the case having been submitted to the court. After the initial hearing, the court must conclude asylum proceedings within 180 days, unless “exceptional circumstances” require a delay. Such circumstances are usually limited to emergencies, such as the death of an applicant’s family member or severe illness.
Depending on the immigration judge’s preference, she or he may have the applicant apply for any other forms of available immigration relief at the same time or may choose to hear the asylum issue first, before considering any other relief. This practice can vary from court to court.
You should certainly consult an immigration attorney familiar with the court and the particular judge for guidance. In general, immigration judges are also willing to help you understand the court’s procedures and scheduling, particularly in asylum proceedings.
Timing Isn’t Everything
As you can see, cases before the immigration court can finish in as little as a few months or can extend out to several years. The timing in your particular case is highly dependent on the particular facts and the potential forms of relief for which you might be eligible. Seek an immigration attorney who is experienced with the immigration court for guidance in your case.Source: www.nolo.com