Tweet
In some cases the non-citizen is transferred from prison to a federal immigration detention center prior to parole. In some cases not until after parole. In some cases the removal process is started in prison (but usually only in federal prisons) so that it is completed before parole. In some cases the parolee or probationer is picked up off the streets at a routine meeting with his officer. And of course, in other cases the person who is already wanted by the DHS somehow comes afoul of the law, is investigated, taken straight to detention. People are also picked up during border crossings, during the course of work, and even, although very rarely, at home.
So, the process starts at different points. But it is always done the same way - a notice to appear (NTA) is presented that lists the charges and allegations supporting removal. In this NTA the person's immigration status or lack of is also alleged. (When the person is in custody, prior to the formal NTA being presented the prisoner and his jailer (the jailr or prison system) is notified of a DHS "hold" - which indicates that DHS will probably take custody of him after his parole. But a hold is not enough to keep him for long. A formal NTA is a must.)
For people who just lie down and accept removal, there is just one hearing where the party can just sign up for voluntary removal before a judge. For people who fight the removal, there are a series of hearings:
The first hearing is a bail hearing. This happens within a week of being taken into custody. Almost everyone who is charged with a recent crime will be denied bail, so nowadays this hearing is almost a formality and a foregone conclusion. The rules for getting bail are fairly simple, but basically anyone charged with an aggravated felony (which is about anything these days) or controlled substance violation (possession of actual drugs or worse) AND who was still in custody (not released prior to) October 8, 1998, falls under mandatory custody. So, if you did any time after that date and were convicted of an aggravated felony or a controlled substance violation, forget about bail.
Failure to get bail can be appealed, so that there can be a 2nd bail hearing at some point in the future. Can also ask the judge to reconsider the bail decision before appealing it, which could result in another bail hearing as well.
After the issue of bail is resolved, there is a second hearing, fairly soon after the last bail hearing, where the formal allegations from the NTA are presented. If the respondent denies the allegations, there is a subsequent hearing set up, about a month after the last one, where the government has to bring in proof of all allegations, such as certified copies of convictions. The immigration judge (IJ) then decides whether the government has met the burden of proof to proceed, and if so, sets up a Master Hearing where the respondent's fate will be decided.
It is at this last hearing, usually set a few months after the prior hearing, where everything is decided - everything from whether or not the respondent should be removed, what country he is a citizen of, what his immigration status is, what his date of entry into the country was, to whether he is entitled to discretionary relief like cancellation of removal, and other relief like asylum, withholding of removal or relief pursuant to the Convention Against Torture. The last three are relief for people who will be persecuted or tortured if returned to their home countries.
At that master hearing the IJ will either order the person removed and execute the judgment, order removed and withhold execution, or cancel removal or even rule in favor of the respondent and against the government. How fast the person is removed after a final order of removal depends on what country he is from. If from Mexico, could be on a bus within a week. If from a country like India, could take months before travel arrangements are completed and he is on a plane.
Also, and finally, if no country will take the person and issue travel documents - such as if he is from a place like Iran, Vietnam, Cuba, etc. - as I have written about in detail elsewhere, he will not be removed at all and in fact returned to the streets of the U.S. within 6 months.
So, all told, it can take around nine months to get a final order of removal or beat the case. This does not include appeal time - the government usually appeals if they lose, but only to the BIA (Board of Immigration Appeals). Depending on the complexity of the issue, the BIA can take 3 - 9 months to respond, although lately they respond with one line opinions that say nothing other than DENIED or GRANTED so the appeals tend to come in a bit faster. If the government loses at the BIA level, they drop the matter and appeal no further.
People who lose at BIA level can and usually do appeal further, to their circuit court and from there even to the U.S. Supreme Court. This process can take years, and there are people in immigration lockup pending appeal for a ridiculous amount of time. In some cases bail can be granted by the circuit courts themselves, but more often than not there is no way to get out of detention once bail is denied at the beginning.
This is what makes the process so unfair - people who might have good cases simply give up and drop their rights rather than sit in detention for years pending appeal.
So, the process starts at different points. But it is always done the same way - a notice to appear (NTA) is presented that lists the charges and allegations supporting removal. In this NTA the person's immigration status or lack of is also alleged. (When the person is in custody, prior to the formal NTA being presented the prisoner and his jailer (the jailr or prison system) is notified of a DHS "hold" - which indicates that DHS will probably take custody of him after his parole. But a hold is not enough to keep him for long. A formal NTA is a must.)
For people who just lie down and accept removal, there is just one hearing where the party can just sign up for voluntary removal before a judge. For people who fight the removal, there are a series of hearings:
The first hearing is a bail hearing. This happens within a week of being taken into custody. Almost everyone who is charged with a recent crime will be denied bail, so nowadays this hearing is almost a formality and a foregone conclusion. The rules for getting bail are fairly simple, but basically anyone charged with an aggravated felony (which is about anything these days) or controlled substance violation (possession of actual drugs or worse) AND who was still in custody (not released prior to) October 8, 1998, falls under mandatory custody. So, if you did any time after that date and were convicted of an aggravated felony or a controlled substance violation, forget about bail.
Failure to get bail can be appealed, so that there can be a 2nd bail hearing at some point in the future. Can also ask the judge to reconsider the bail decision before appealing it, which could result in another bail hearing as well.
After the issue of bail is resolved, there is a second hearing, fairly soon after the last bail hearing, where the formal allegations from the NTA are presented. If the respondent denies the allegations, there is a subsequent hearing set up, about a month after the last one, where the government has to bring in proof of all allegations, such as certified copies of convictions. The immigration judge (IJ) then decides whether the government has met the burden of proof to proceed, and if so, sets up a Master Hearing where the respondent's fate will be decided.
It is at this last hearing, usually set a few months after the prior hearing, where everything is decided - everything from whether or not the respondent should be removed, what country he is a citizen of, what his immigration status is, what his date of entry into the country was, to whether he is entitled to discretionary relief like cancellation of removal, and other relief like asylum, withholding of removal or relief pursuant to the Convention Against Torture. The last three are relief for people who will be persecuted or tortured if returned to their home countries.
At that master hearing the IJ will either order the person removed and execute the judgment, order removed and withhold execution, or cancel removal or even rule in favor of the respondent and against the government. How fast the person is removed after a final order of removal depends on what country he is from. If from Mexico, could be on a bus within a week. If from a country like India, could take months before travel arrangements are completed and he is on a plane.
Also, and finally, if no country will take the person and issue travel documents - such as if he is from a place like Iran, Vietnam, Cuba, etc. - as I have written about in detail elsewhere, he will not be removed at all and in fact returned to the streets of the U.S. within 6 months.
So, all told, it can take around nine months to get a final order of removal or beat the case. This does not include appeal time - the government usually appeals if they lose, but only to the BIA (Board of Immigration Appeals). Depending on the complexity of the issue, the BIA can take 3 - 9 months to respond, although lately they respond with one line opinions that say nothing other than DENIED or GRANTED so the appeals tend to come in a bit faster. If the government loses at the BIA level, they drop the matter and appeal no further.
People who lose at BIA level can and usually do appeal further, to their circuit court and from there even to the U.S. Supreme Court. This process can take years, and there are people in immigration lockup pending appeal for a ridiculous amount of time. In some cases bail can be granted by the circuit courts themselves, but more often than not there is no way to get out of detention once bail is denied at the beginning.
This is what makes the process so unfair - people who might have good cases simply give up and drop their rights rather than sit in detention for years pending appeal.