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REMOVAL DEFENSE IN IMMIGRATION COURT

Immigration and Customs Enforcement (ICE), an agency of the U.S. Department of Homeland Security (DHS), has the authority to detain and place individuals in removal proceedings, also known as Immigration Court. Removal proceedings allow for an individual to claim relief (or an immigration benefit) that would allow them to not be deported before an Immigration Judge assigned to the case by the Executive Office of Immigration Review (EOIR), an agency of the U.S. Department of Justice. An Immigration Judge should be an independent, administrative judge that works to ensure that the immigration law is being followed with respect to immigrants in proceedings. Their decisions are appealable to the Board of Immigration Appeals, also an agency within the U.S. Department of Justice.

The most common way that an individual is placed in removal proceedings is to be arrested. To be more specific, once arrested at the local or state level, ICE agents (or deputized ICE state or local officials) have the power to initiate removal proceedings. Another way to be placed in removal proceedings is to have an asylum application be referred to court by the U.S. Citizenship and Immigration Services (USCIS) asylum office, or to have another application denied by USCIS.

Whether an individual is detained or not while in removal proceedings depends on ICE making one of three choices.

  • ICE can determine to not release the individual. In this case, there are two possibilities.
    • The individual is subject to mandatory detention. This usually means that the individual has certain convictions, like aggravated felonies or drug-related convictions, and by law, cannot be released on bond.
    • The individual can request a bond before an Immigration Judge, if they prove that they are not a flight risk and not a danger to society. If the bond is granted by the judge and the bond is paid, the individual is released to appear before Immigration Court on his own accord.
  • ICE can release the individual if a bond is paid. The bond will be forfeited if the individual does not comply with appearing in Immigration Court or complying with any orders by the Immigration Judge.
  • ICE can release an individual on an order of supervision, where the individual will have to report to ICE while in removal proceedings. If they do not report, the individual can be detained.

There are various forms of relief that an individual can apply for, including cancellation of removal, asylum, and adjustment of status. There are other forms of relief that an Immigration Judge that will allow the court to postpone the case, such as a petition based on marriage to a U.S. citizen, petitions for U status as the victim of crimes, etc.

In the Carolinas, all individuals in removal proceedings will have court in Charlotte, where there are three Immigration Judges. The Lopez Law Firm is located in the same building as the court in Charlotte and regularly appears in Immigration Court. It is critical to consult with an attorney regarding the process and options for relief in Immigration Court.