Removal Proceedings in Immigration Court: How an INA §240 Case Works

INA §240 provides the principal immigration court procedure for determining whether a respondent should be removed from the United States. The immigration judge can decide inadmissibility or deportability and can adjudicate forms of relief or protection that fall within the court's authority.

INA §240 is not the only removal mechanism in federal immigration law. Expedited removal, reinstatement of a prior removal order, administrative removal for certain aggravated felony cases, asylum only proceedings, and other specialized procedures can operate under different statutes and regulations. A person should therefore identify what kind of proceeding is actually pending before assuming that ordinary INA §240 rules apply.

In an INA §240 case, the parties are the respondent and DHS. The immigration judge is part of the Executive Office for Immigration Review, which is within the Department of Justice rather than DHS.

DHS uses a charging document to initiate ordinary removal proceedings. In modern INA §240 cases, that document is generally the Notice to Appear, Form I-862.

EOIR's current Policy Manual states that removal proceedings begin when DHS files the NTA with the immigration court after serving it on the respondent. The regulation at 8 C.F.R. §1003.14 states that jurisdiction vests and proceedings commence when the charging document is filed with the immigration court by DHS and includes the required certificate of service.

Service and filing can occur at different times. A respondent can therefore have an NTA in hand before the immigration court's systems show an active case.

The NTA lists factual allegations and one or more statutory charges. A detailed explanation of that charging document is available in the Notice to Appear guide.

A respondent in removal proceedings may be represented by authorized counsel of the respondent's choosing, but not at government expense. The regulations require the immigration judge to advise the respondent of this right and of the availability of pro bono legal service information.

The regulations also provide a reasonable opportunity to examine and object to evidence, present evidence, and cross examine government witnesses, subject to specified national security limitations.

An attorney appearing before the immigration court generally enters an appearance through Form EOIR-28 and must satisfy EOIR registration requirements. The appearance is case specific. Representation before USCIS or the Board of Immigration Appeals uses different appearance procedures.

The right to counsel does not mean every hearing will automatically be postponed until a respondent finds a particular lawyer. INA §239 provides a statutory minimum period between service of the NTA and the initial hearing unless the respondent requests an earlier hearing, and continuance questions are governed by separate standards.

Traditionally, the master calendar hearing is the preliminary court setting used for pleadings, scheduling, identifying applications for relief, narrowing legal and factual disputes, and setting future deadlines.

EOIR's current 2026 Policy Manual contains an important procedural development for represented, non-detained cases. When Form EOIR-28 is filed at least fifteen days before a scheduled master calendar hearing, the Manual states that the hearing will be vacated and the immigration judge will issue a scheduling order for written pleadings and evidence relating to the charges. Where the appearance is filed later, the attorney and respondent generally must attend the scheduled hearing. Court orders and later EOIR updates always control the actual case.

Whether pleadings occur orally at a hearing or through a written scheduling process, the legal work is substantially the same. The respondent must decide how to address service of the NTA, each factual allegation, each charge of removability, possible country of removal, and intended applications for relief.

The pleading stage should not be treated as mere scheduling. Under 8 C.F.R. §1240.10, admitted allegations can remove facts from dispute and can support a finding of removability when the admissions establish the government's charge.

There is no single burden rule for every respondent. INA §240 and 8 C.F.R. §1240.8 divide the burden according to the legal posture of the case.

These different standards are one reason a person's admission history matters so much. The same individual facts can be litigated under a different burden framework depending on whether the respondent is charged with inadmissibility or deportability.

For an INA §237 case, the detailed statutory charges are discussed in the INA §237 Grounds of Deportability guide.

Contesting removability means disputing that the government has established the legal basis for removal. This is different from admitting removability and asking for discretionary relief.

A removability dispute can concern the respondent's nationality, admission history, status, criminal record, statutory interpretation, burden of proof, authenticity or sufficiency of documents, or another element of the charge.

In a conviction based case, the existence of a criminal record is only part of the analysis. DHS may still need to establish that the conviction meets the federal immigration definition used in the charged ground. For certain criminal provisions, that requires categorical analysis focused on the statutory elements rather than a broad description of the underlying conduct.

In a status violation or fraud case, the dispute can center on what status the respondent actually held, what representations were made, whether a fact was material, whether the applicable mental state is satisfied, or whether an exception or waiver applies.

If DHS cannot sustain the operative charge, the respondent may seek termination or another appropriate disposition depending on the governing law and posture. A motion is not a substitute for identifying the precise legal defect in the charge.

A respondent who is removable may still qualify for relief or protection. The available options depend on immigration history, family relationships, residence, criminal record, manner of entry, prior orders, fear of return, and many other statutory factors.

Forms of relief or protection that can arise in immigration court include cancellation of removal for certain permanent residents, cancellation for certain nonpermanent residents, adjustment of status in cases where the immigration judge has jurisdiction, asylum, withholding of removal, protection under the Convention Against Torture, specified waivers, VAWA related relief, and voluntary departure.

Not every remedy is available in every case. Some forms of relief contain residence requirements, good moral character requirements, qualifying relative rules, criminal bars, prior relief bars, jurisdictional limits, or discretionary standards.

8 C.F.R. §1240.8 places the burden on the respondent to establish eligibility for requested relief. When the evidence indicates that a mandatory denial ground may apply, the regulation also assigns the respondent the burden described there to establish that the bar does not apply.

Immigration court litigation is deadline driven. The EOIR Policy Manual contains filing rules, but an immigration judge can issue case specific scheduling orders that control the actual deadlines in a proceeding.

Filings can include written pleadings, applications for relief, supporting exhibits, criminal records, immigration records, declarations, expert materials, witness lists, prehearing briefs, and motions. The required filing depends on the issue being litigated.

Under EOIR's current policy for represented non-detained cases, written pleadings may be required through a scheduling order after a master calendar hearing is vacated. If removability is found, a later scheduling order may set deadlines for relief applications and supporting documents.

Missing a filing deadline can have serious consequences. EOIR guidance states that failure to comply with a deadline for an application may result in a finding that the application was abandoned. Requests to extend a deadline should follow the court's motion rules rather than assume that an informal request is enough.

Electronic filing requirements also depend on who is filing and the system applicable to the case. Attorneys and accredited representatives should follow current ECAS requirements and the particular immigration court's instructions.

EOIR describes an individual calendar hearing as an evidentiary hearing on contested matters. Those matters can include a disputed charge of removability, an application for relief, or both.

Before the hearing, the parties generally submit the applications, exhibits, motions, briefs, and witness materials required by the scheduling order and EOIR rules. Evidence that exists in a separate bond record should not be assumed to be part of the removal case record.

At the merits hearing, the immigration judge may receive testimony and documentary evidence. INA §240 authorizes the judge to administer oaths, receive evidence, question witnesses, and permit examination and cross examination.

The respondent's preparation should match the legal elements at issue. A cancellation case may require detailed residence, family, criminal, and discretionary evidence. A contested criminal charge may focus much more heavily on statutes, conviction records, and legal briefing. An asylum case may require extensive testimony, corroboration, and country evidence.

Failure to appear can result in an in absentia removal order when the statutory requirements are met. INA §240(b)(5) also provides specified reopening routes, including lack of required notice, qualifying custody circumstances, and exceptional circumstances subject to the applicable filing period.

Current notice law requires close attention to both the NTA and later hearing notices. Matter of Lopez-Orellana, 29 I&N Dec. 533 (BIA 2026), holds that if a respondent received adequate notice of the missed hearing and DHS establishes removability, an Immigration Judge should proceed in absentia rather than terminate solely because the original NTA was noncompliant. The respondent's claim processing objection to that NTA can also be forfeited if not timely raised.

Matter of Diji, 30 I&N Dec. 1 (BIA 2026) (en banc), separately holds that in absentia notice can be sufficient when mailed to the most recent address the person provided, including an address supplied before the NTA was issued. A lack-of-notice motion should therefore reconstruct the complete address and mailing history rather than assume that nonreceipt alone resolves the statutory notice question.

A respondent should not intentionally skip a hearing because the NTA appears defective. Stop time rules, claim processing objections, in absentia notice, and reopening standards are distinct doctrines.

A respondent must keep required contact information current. A move can create two different procedural issues: updating the address and asking the immigration court to transfer venue. One does not automatically accomplish the other.

Matter of Diji, 30 I&N Dec. 1 (BIA 2026), increases the importance of preserving a complete address record. For in absentia purposes, the Board held that notice may be sufficient when mailed to the most recent address the noncitizen provided, even if that address was provided before the NTA was issued. Counsel should therefore identify every address previously supplied to DHS or USCIS as well as later EOIR address filings.

A motion to change venue does not itself move the case. Until the Immigration Judge grants the motion or otherwise changes the hearing, the respondent should comply with the existing hearing notice and court orders. EOIR, USCIS, and other agencies may also have separate address-update requirements.

Motions ask the immigration judge to take a procedural or substantive action before final resolution of the case. Depending on the facts and law, motions can concern continuances, venue, termination, suppression, evidence, subpoenas, deadlines, consolidation, reopening, or other issues within the court's authority.

EOIR's Policy Manual states that, except for qualifying bond matters, the immigration court generally cannot entertain a motion in a removal case before the charging document has been filed with the court.

A motion should identify the legal authority, explain the relevant facts, state the requested relief, comply with filing and service rules, and include supporting evidence when necessary. Filing a motion does not automatically cancel a scheduled hearing unless the court grants relief or otherwise changes the schedule.

An immigration judge can issue an oral or written decision. The outcome can include termination or another disposition of the charge, a grant or denial of relief, an order of removal, voluntary departure where legally available, or another order permitted by law.

The parties may have appellate or motion options after the immigration judge decides the case. Jurisdiction over the next filing depends on whether the matter remains before the immigration court, has been appealed to the Board of Immigration Appeals, or has reached another procedural stage.

Appeal and motion deadlines can be strict. The actual written or oral order and accompanying instructions should be reviewed immediately rather than relying on a general description of post decision procedure.

Later INA237.com clusters will address BIA appeals, motions to reopen, motions to reconsider, in absentia reopening, federal petitions for review, and post order issues as separate full authority guides.

A useful removal case review starts with the actual record rather than a summary alone. The most important documents vary, but the following materials commonly reveal the procedural and substantive issues:

• every page of the Notice to Appear and any Form I-261 or written amendment;
• all immigration court hearing notices and scheduling orders;
• the respondent's passports, visas, I-94 records, green card, and immigration approval notices;
• USCIS decisions, interview notices, NOIDs, revocation decisions, or asylum decisions that preceded the NTA;
• certified criminal court dispositions and relevant plea, charging, and sentencing documents;
• prior removal, deportation, exclusion, voluntary departure, or border records;
• applications for relief already filed with EOIR or USCIS;
• evidence concerning residence, family relationships, hardship, fear of return, or other relief requirements;
• any prior attorney filings and immigration judge or BIA decisions.

Those records allow the case to be divided into the right questions: what DHS charged, what DHS can prove, what should be contested, what relief is available, what evidence is missing, and what deadline comes next.