What removal is — and how it begins
Removal was formerly known as deportation, and changed through the Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRIRA"). Removal proceedings are initiated by service of a Notice to Appear in Removal Proceedings ("NTA"). This Notice contains significant information about the charges against you, but there may be errors and missing information which may be of help in challenging the NTA.
An individual may be served with an NTA if, for example, DHS determines that they are unlawfully present, have committed a crime (whether as a lawful permanent resident or not), have been charged with misrepresentation on an application for an immigrant benefit, or received a denial of an immigrant petition or application.
Unlawful presence & the 3/10-year bars
An individual acquires unlawful presence generally beginning on the last day of any authorized stay. Under IIRIRA, if you are unlawfully present for more than six months and you leave — either because you are removed, or because you leave voluntarily — you can’t return for three years. If you were unlawfully present for more than a year and you leave, either because you are removed or because you leave voluntarily, you can’t return for ten years. Unlawful presence is a very, very common ground for removal.
The grounds of relief from removal
There are only a few grounds of relief from removal. These include asylum, the Convention Against Torture ("CAT"), withholding of removal, cancellation of removal, voluntary departure, and adjustment of status.
- Asylum. Applications for Asylum must be filed within one year of entry, and you must prove that you have a credible fear of persecution because of your race, creed, color, national origin, sexual or gender identification, or political affiliation — and then prove again in one year that country conditions have not changed to be able to file to adjust your status to that of a lawful permanent resident.
- Voluntary Departure. Means just that, you voluntarily depart. There is no stigma on your record as would be with an Order of Removal, but you cannot apply to adjust your status for 10 years and you must depart within the time provided by the Court.
- Cancellation of Removal for non-lawful permanent residents must establish lawful admission and physical presence in the U.S. for ten years, possess good moral character, have no disqualifying crimes, and have a qualifying United States relative who would suffer extraordinary and extremely unusual hardship if the foreign national were removed, and warrant a favorable exercise of discretion.
- Adjustment of Status is arguably the most utilized form of relief from removal. However, it is only available where there is an immediate immigrant visa.
USCIS jurisdiction vs. Immigration Court jurisdiction
USCIS has jurisdiction — which is power — to adjudicate petitions for immigrant relatives even where an individual is in removal proceedings, but does not have jurisdiction over adjustment of status, or naturalization, among other benefits, where the Court does. The Immigration Court has jurisdiction over an individual served with a Notice To Appear until the case is terminated. The respondent’s adjustment of status will be determined at an Individual Hearing in Court unless the respondent has moved the Court to terminate proceedings because an immigrant visa is immediately available and the respondent is prima facie eligible to adjust status. The respondent may have to file a motion with the Court to administratively close proceedings and not set any future hearings — to pursue adjustment of status or naturalization with USCIS, or so that he or she can file the provisional waiver of inadmissibility — but upon approval will have to file another motion to recalendar proceedings and seek termination so that the respondent can attend an immigrant visa interview already set in his or her home country.
The court is backlogged — but yours can move
Currently, Immigration Courts are extremely backlogged. Master Calendars, which are like an arraignment in criminal court and address many respondents at the same time, when issued in an ordinary situation — like a denial of an immigrant visa, adjustment of status, or naturalization — can be set in 2027 and 2028. But when issued to someone in detention, can be set within 10 days. Individual Hearings, limited to the respondent’s case and requiring three hours, are being set in 2027 and 2028. It may be possible to file a motion to recalendar, if justified, in order to expedite an Individual Hearing.
Call an experienced immigration attorney immediately. The NTA contains the charges of removability against you and the date of your first hearing. There may be errors in the NTA that affect the case — incorrect charges, missing information, jurisdictional issues — that we want to identify before the first hearing. Do not ignore the notice; missing a hearing typically results in an in absentia order of removal, which is much harder to undo than addressing the case head-on.
It depends on the specific offense, the disposition, and your immigration status. Some convictions are an aggravated felony or a crime involving moral turpitude that trigger mandatory removal grounds. Other convictions, even when serious in criminal court, do not have the same immigration consequences. We analyze the criminal record against the specific statutory grounds for removability before advising on the path forward.
It depends on your underlying immigration status. If you have a pending application that conveys work authorization — adjustment of status with an EAD, asylum with an EAD, cancellation of removal with an EAD — you can work while that case is pending. Without an underlying basis for work authorization, working without permission while in removal proceedings can expose both you and the employer to additional consequences.
Voluntary departure means you leave the country at your own expense within the time set by the immigration judge. There is no removal order on your record, but you cannot apply to adjust status for 10 years if voluntary departure was granted post-conclusion. An Order of Removal is a formal deportation — it carries a bar to re-entry of 5, 10, or 20 years depending on the circumstances, and it appears in immigration databases permanently. Voluntary departure is the better outcome where it is available.
Yes, if you are otherwise eligible — typically through an immediate immigrant visa from a U.S. citizen spouse or adult child. The Immigration Court has jurisdiction over the adjustment-of-status application while you are in proceedings. We may file a motion to administratively close or terminate proceedings so the case can be adjudicated by USCIS or proceed at an individual hearing in court — the choice depends on the specific facts of your case and the court's calendar.