A Notice to Appear is a summons to appear and defend against removal (deportation) charges. If the respondent named in the Notice to Appear is detained, then it is ordinarily personally served at the time of arrest. Otherwise, it can be mailed to the respondent's address last known to immigration.
In some cases, removal can be effectuated administratively by the Government without a hearing before an Immigration Judge, in which case, a Notice to Appear does not issue. Illegal entrants interdicted within 100 miles of the border are usually given expedited removal.
Persons who appear at the border and seek entry but are turned away may have an expedited removal entered of record without knowing it at the time. If such persons entered illegally thereafter, the prior removal order can be used to remove them again without a hearing. The prior removal can also be a basis for criminal prosecution. Finding out if an unsuccessful attempt to enter the US resulted in expedited removal can require invoking the procedures of the Freedom of Information Act (FOIA).
The grounds asserted by the Government to justify removing the Respondent from the country are listed on the front of the Notice to Appear. It is a list of charges. Any legal or factual errors in the allegations of the Notice to Appear can lead to termination of the proceedings unless amendment to the Notice to Appear is requested in time and allowed. Such amendments are routinely made by Government lawyers and granted by Immigration judges.
A Notice to Appear is not effective until it has been served on the Respondent AND filed with the Immigration Court. Until it is filed, the Immigration Court lacks jurisdiction to order removal of a person from the United States.
Service can be done by in person or by regular or certified mail. If the person is not served, then the proceedings have no legal effect. However, where a Respondent has changed residence without notifying the Immigration authorities, arrival of the mail to the Respondent at the old address may be presumed in the absence of evidence to the contrary and an order of removal entered in absentia, that is, without knowledge or participation of the Respondent. (This is a good reason to keep the USCIS and Immigration Court aware of any change of residence.) Re-opening such proceedings to set aside the absentia order and for a hearing on the true facts and law presented by the case is not an easy matter and should be only be attempted with a competent and experienced immigration lawyer.
If an order of removal was entered against you or a loved without their knowledge or participation, and a decision should be taken whether to contest it, please contact Messing Law Offices to schedule a confidential initial consultation.
The possible outcomes of the removal proceedings are 1. an order of deportation, 2. termination of the case, or 3. a grant of relief from removal. The last two possibilities constitute a win for the Respondent and allow a further period of time in which s/he is authorized to remain in the United States. Either the Respondent or the Government can appeal a removal decision to the Board of Immigration Appeals. Decisions of the Board of Immigration Appeals can be reviewed by petition to the federal circuit court of appeals for the geographic area in which the deportation proceedings were held.
Often while in removal the respondent is entitled to employment authorization, which allows a respondent to work legally and save money while the case is proceeding through the immigration courts. If you have received have questions about whether you can obtain employment authorization, please contact Messing Law Offices for a free brief telephonic evaluation or to schedule an initial consultation.
To apply for employment authorization, consult the forms section of the USCIS website.
If you have received a Notice to Appear and are unsure of what to do next, please contact Messing Law Offices (520) 512-5432for a free brief telephonic evaluation or to schedule an initial consultation.
The various sections of the Notice to Appear are highlighted in different colors, for greater clarity.
Displayed blanks in grey in the sample form to the left normally contain information specific to the Respondent in the removal proceeding.
If a date, place and time is noticed, it is very important to dress, appear at least 30 minutes before the appointed time and act appropriately in court.
If the Respondent fails to appear, a removal order may be entered in absentia. If a Respondent is present but not represented and expresses a desire to be represented by a lawyer to the Immigration Judge, often a continuance is granted for this purpose. If the Respondent is in custody, typically the first hearing addresses whether the Respondent is eligible for release on bond. Where a Notice to Appear is served by regular or certified mail, the Government does not normally seek detention and the person remains free on his or her own recognizance, absent a change of circumstances such as an arrest.
The portion of the Notice to Appear that is highlighted in blue is useful to an alien who is presented with the form while in custody or being taken into custody since it provides that an expedited hearing will be held, without waiting 10 days as may be otherwise legally required. The use of this request form should be balanced against a need for an attorney at all stages of the proceedings and should only be invoked if an attorney has already been retained and is ready for a quick hearing.
The portion of the Notice to Appear that is highlighted in purple states how service of process was made on the Respondent by the immigration enforcement officials. While in this sample the notice was sent by regular mail, in many cases the officials prefer to serve the Notice in person to a Respondent, and have the Respondent sign for the Notice to Appear. Such a procedure avoids any argument later in court about whether the Respondent received notice of the proceedings.
Where the Respondent expresses a fear of persecution by returning to his or her country, the officials are required to assess whether the fear is reasonable and credible, in which case the Respondent may be referred for political asylum prior to being processed for removal.
Each immigration court maintains a list of organizations and attorneys who have volunteered to provide free legal services to Respondents. In the sample, the box was checked showing that the list was sent along with the Notice.
At Messing Law Offices, we provide high quality legal services and expertise to families, working men and women, and businesses. If you have a concern in the areas of family based immigration, business based immigration, employment based immigration, or naturalization and you are seeking the help of an experienced immigration lawyer, call Messing Law Offices (520) 512-5432 for professional Arizona immigration attorney assistance.