Understanding Immigration Court

Understanding Immigration Court

Immigration court can be confusing if you don’t know your way around. Here’s an overview of the structure of the court to help you better understand how to navigate it:

Executive Office of Immigration Review (EOIR)
The Federal Immigration Courts, or Executive Office of Immigration Review (EOIR), is a system of administrative courts throughout the country that processes alien charged with violating Immigration laws.

The Immigration Courts are administered by the Executive branch of government. Some of those facing Immigration Court deportation or removal hearings will have relatively minor charges, such as overstaying a visa, while others might have more serious charges, such as committing an aggravated felony.

Charges are brought by the Department of Homeland Security (DHS) by issuing a Notice to Appear, which is the charging document.

Generally a Master Court hearing is scheduled first by the Immigration Court. This is a status type hearing in which the Immigration Judge informs the alien, or respondent, that he or she has the right to seek counsel. It is customary to allow at least one continuance for counsel.

Because the failure to appear at court hearing will result in an order of removal in absentia, it is important to attend each hearing even if the respondent does not yet have an attorney.

In Northern California, the Immigration Court is located in San Francisco’s Financial District (http://www.justice.gov/eoir/sibpages/sfr/sfrmain.htm ). There are two locations. The main court is located at 120 Montgomery Street, Suite 800, and the second Court is located at 630 Sansome Street, Room 475, which is generally reserved for those aliens in custody of ICE/DHS. If a family member is detained by ICE you can try locating them online by using the detainee locator tool.

Unlike criminal cases, the Immigration Court is a Civil proceedings, thus, there is no Constitutional right to government appointed counsel. There is however the right to retain the lawyer of your choice at no expense to the government. Immigration Judges generally advise respondents to seek counsel if they have the means to hire an attorney, as the Immigration laws are often complex.

After one or more Master hearings, the Immigration Judge may set the case to a Merits or Individual hearing in order to present testimony and evidence. Sometimes, the respondent will contest the charges contained in the Notice to Appear, and other times the respondent may admit the charges but seek some form of relief from removal, such as an application for asylum or adjustment of status to that of a legal permanent resident.

Depending on the calendar of the Immigration Judge, these cases can last for several months or for several years. Sometimes people will be eligible to apply for a work permit while the case is pending in the Immigration Court. A lawyer will know when it is possible to receive a work permit. Work permit applications are filed with the U.S. Citizenship & Immigration Service (USCIS), part of the Department of Homeland Security, which is distinct from the Immigration Court, which is part of the Department of Justice, or Attorney General (www.justice.gov/eoir/ ).

Board of Immigration Appeals (BIA)
In most cases, respondents who are not successful at the Immigration Court may file an appeal to the Board of Immigration Appeals (BIA), which is the administrative appellate court for the Immigration Courts.

The BIA is located in Falls Church, Virginia. A decision by the Immigration Judge to order a respondent deported or removed is not final if the respondent reserves the right to appeal and files an appeal to the BIA in a timely manner. The BIA may find that the Immigration Judge committed some error and reverse the Immigration Judge or remand proceedings to the Immigration Court for further proceedings. If the BIA affirms the order of the Immigration Judge, the order of removal or deportation will become final. In those instances, Immigration and Customs Enforcement (ICE) might then have authority to deport that person.

Federal Circuit Courts of Appeal – Petitions for Review
The Federal Circuit Courts of Appeal sometimes provide another layer of appellate review and the possibility to stay a deportation order, but the Circuit Courts will not have jurisdiction over all cases.

The Federal Circuit Courts of Appeal are Article III Courts, meaning they are an independent branch of government from the Executive Department. There is generally jurisdiction for the Circuit Courts to review asylum decisions, but jurisdiction for many other types of discretionary cases has been limited by statute.

An attorney experienced in such cases can best determine when there will be jurisdiction to file a petition for review before the Federal Circuit Courts. Petitions for review must be filed within 30 days of a final order of removal.

In cases arising out of Immigration Courts in California, Arizona, Nevada, Hawaii, Alaska, Idaho, Oregon, Washington state, and Montana, petitions for review should be filed in the Ninth Circuit Court of Appeals. The Circuit Courts have begun to allow electronic filing of cases. As part of a Petition for Review, a stay of removal must be requested in the Federal Court in order to prevent the execution of a removal order while the petition for review is pending. In a successful appeal, the Circuit Court may overturn the BIA and remand the case for further proceedings at the administrative court level. Some cases will be in this system for years.

Disclaimer- Please Read
Any advice on zaslowlaw.com, The Law Offices of Nathan Zaslow website or You Tube Videos is general in nature and not designed for the specific facts of any given case. Each case is unique and should be treated as such. Different facts, laws and venues can be involved. The comments in this blog are for general informational use. Always seek advice from a competent attorney, who is familiar with the facts of your case. Also keep in mind that laws are constantly changing as are the policies and procedures of both agencies and courts in dealing with these cases.