Removal Defense for Notices to Appear and Immigration Court Cases
If you received a Notice to Appear, have an immigration court case, or believe DHS may place you in removal proceedings, the first questions are what the government is charging, whether it can prove the charge, and what defenses or relief may be available.
An NTA Is Not the Same as a Removal Order
A Notice to Appear, usually called an NTA, is Form I-862. It is the charging document DHS uses in ordinary removal proceedings under INA §240. The NTA states factual allegations about the respondent and lists one or more statutory charges that DHS says make the person removable.
Receiving an NTA does not itself establish that the allegations are correct or that the legal charge is valid. At immigration court, the respondent is asked whether the factual allegations are true and whether the respondent concedes or contests the charges of removability.
The legal question is whether the allegations, evidence, immigration history, and statutory charge establish removability under the law applicable to the respondent.
Where Are You in the Removal Process?
You Received an NTA
Review every allegation, the statutory charge, the manner of service, the immigration court listed on the form, your current address, and whether DHS has filed the NTA with EOIR.
An NTA May Be Coming
A USCIS denial, fraud finding, status issue, criminal matter, or another adverse immigration decision can create removal risk. The consequences depend on the person's actual immigration history and the legal ground involved.
Your Case Is Already in Court
Immigration court proceedings can involve pleadings, contested removability, applications for relief, evidence, motions, briefing, testimony, and appeal rights. Procedural posture matters.
You Are a Green Card Holder
Permanent residence does not make a person immune from removal. DHS still must establish the applicable legal basis for deportability, and LPR cases raise distinct burden, admission, criminal, and relief issues.
INA §212, INA §237, and INA §240 Answer Different Questions
Removal cases can become confusing because several parts of the Immigration and Nationality Act may be relevant. INA §212 contains grounds of inadmissibility. INA §237 contains grounds of deportability. INA §240 establishes the ordinary removal proceeding used to determine removability and applications for relief.
The distinction between inadmissibility and deportability matters. INA §237 generally addresses people who have been admitted and are charged as deportable. A returning lawful permanent resident can, in specified circumstances, instead be treated as an applicant for admission. A person present without admission or parole also faces a different burden framework.
Grounds of inadmissibility and the question whether a person may be admitted or receive a benefit that requires admissibility.
Statutory grounds under which a person who has been admitted may be charged as deportable.
The ordinary removal proceeding before an immigration judge, including pleadings, evidence, burdens, relief, and a decision.
The Burden Depends on the Type of Removal Charge
In a case charging an admitted respondent with deportability, DHS must establish deportability by clear and convincing evidence. Different burden rules apply to applicants for admission and to respondents charged with being present without admission or parole.
The exact charge therefore matters. DHS may need to establish facts concerning admission, immigration status, a criminal conviction, timing, conduct, or another element required by the statutory ground.
DHS can also lodge additional or substituted factual allegations and charges during a proceeding. A respondent must have an opportunity to respond to the government's theory of removability.
How an Ordinary Removal Case Develops
Form I-862 states factual allegations and one or more charges of removability.
Removal proceedings begin when DHS files the charging document with the immigration court after service.
The respondent addresses service, allegations, charges, removability, intended relief, and preliminary matters.
Evidence, motions, legal briefing, applications, witness materials, and other filings may be required.
A merits hearing may address contested removability or an application for relief. Testimony and documentary evidence may be presented.
The immigration judge decides the matters before the court. Appeal or motion practice may follow depending on the result and procedural posture.
Two Different Questions Can Determine a Removal Case
Can DHS Establish Removability?
A defense to removability challenges the government's legal basis for removing the respondent. The issue can involve allegations, the statutory charge, burden of proof, immigration history, criminal records, evidence, or controlling law.
If Removable, Is Relief Available?
Relief is a separate inquiry. A person who is removable may still qualify for an immigration benefit or protection that permits the person to remain in the United States. Eligibility and evidentiary requirements vary greatly.
Adverse Immigration Decisions Can Create Removal Risk
USCIS can issue Notices to Appear in cases within its enforcement authority. Whether an adverse petition or application decision creates removal risk depends on the person's immigration status, the reason for the decision, any separate ground of inadmissibility or deportability, and other enforcement considerations.
A denied immigration benefit does not automatically establish that the applicant or beneficiary is removable. A denial involving an employer petition, for example, may have very different consequences from an adjustment denial involving an applicant who lacks other lawful status.
A person who receives a decision discussing possible NTA issuance should therefore evaluate the removal consequences before assuming either that proceedings are inevitable or that the denial has no enforcement consequence.
Sources for the Removal Framework
Reviewed by Peter Messersmith
Peter Messersmith is the Senior Immigration Attorney at The Messersmith Law Firm, P.A. He has practiced U.S. immigration law continuously since 2002.
Received an NTA or Facing Possible Removal Proceedings?
A useful case review starts with the actual charging document, immigration history, relevant agency decisions, and any criminal records connected to the alleged ground of removability.