Inside a Removal Case From Notice to Appear to the Plane Ride

Most arguments about deportation are fought by people who could not tell you what happens between the arrest and the flight. Some say the person is put on a plane that afternoon. Others say nobody is ever removed. A third group says "a judge decides," and when you ask which judge, in which court, appointed by whom, the conversation goes quiet. The truth is that the process that runs between an arrest and a flight is dull, procedural and full of deadlines, and almost nobody has seen it from start to finish. That ignorance is expensive, because the system gets blamed for things it does not control and praised for things it did not do. If you want to argue about deportations like an adult, you should be able to walk through one case in order. So that is what we will do.

This is a walkthrough, so the steps are plain and numbered. The section numbers refer to the Immigration and Nationality Act (INA), which is Title 8 of the U.S. Code, and you can read the current text on the House Office of the Law Revision Counsel's website. I will flag the places where practice has changed over time.

Before the first step: two kinds of cases

Removal comes in two broad shapes, and which one a person lands in decides almost everything.

• A regular case. A person is placed into formal removal proceedings before an immigration judge under INA section 240. He gets a hearing, a chance to contest the charges and to ask for relief. Most of this post describes this path.
• A shortcut case. Some people are removed without a full hearing before a judge, through expedited removal, reinstatement of a prior order, or administrative removal. I cover those near the end.

The steps, in order

Step 1: The charging document, the Notice to Appear

A regular case begins with a Form I-862, the Notice to Appear (NTA), issued by an immigration officer under INA section 239. It lists the person's alleged facts (where he was born, when and how he entered) and the legal charges (that he is "deportable" under section 237 if he was lawfully admitted, or "inadmissible" under section 212 if he never was). It is the immigration equivalent of a complaint. It is not a decision.

Paperwork matters here more than you would guess. In Pereira v. Sessions (2018) and Niz-Chavez v. Garland (2021), the Supreme Court held that a notice lacking a specific time and place of the hearing, or delivered in pieces instead of one document, did not trigger a rule that stops a person's accrual of the time he needs for a certain kind of relief. The lesson: in this system, a missing line on a form can change the legal clock.

The NTA is filed with the immigration court, which belongs to the Executive Office for Immigration Review (EOIR). That office is inside the Department of Justice, not the Department of Homeland Security. Hold on to that fact. The agency that arrests (ICE, part of DHS) and the court that hears the case (EOIR, part of Justice) are different bureaucracies, which is a thing most cable commentary never mentions.

Step 2: Custody and bond

After the arrest, the person is either detained or released. The statute makes detention mandatory for certain categories, notably people with specific criminal convictions, under section 236(c). For many others, section 236(a) gives the government discretion to detain or to release on bond, and an immigration judge can review the bond decision. This is why you can have two people in the same court on the same day, one held in a facility and one living at home. Detention capacity, which Congress funds, shapes who falls into which group.

Step 3: The master calendar hearing

The first hearing is the master calendar hearing, a short, scheduled appearance where a judge deals with many cases in a single session. Think of it as arraignment plus scheduling.

What happens: the judge confirms the person's identity and language, explains his rights, and asks him to respond to the allegations in the NTA by admitting or denying them. A government attorney from ICE's Office of the Principal Legal Advisor represents the government. The person may bring a lawyer, but, as INA section 240(b)(4)(A) puts it, at no expense to the Government. There is no government-paid lawyer in immigration court, which is a fact that sparks argument and that conservatives and liberals describe very differently. The judge then asks which forms of relief the person will seek and sets a date for the next hearing.

A master calendar can last minutes. If the person admits the charges and asks for nothing, the judge can order removal on the spot. If he denies them or asks for relief, the case is set for a full hearing. And if he fails to appear after proper notice, the judge may order him removed in absentia under section 240(b)(5). That order can be reopened only on narrow grounds, such as lack of notice or exceptional circumstances, and generally within a limited time.

Step 4: Forms of relief

Relief is a defense that lets a person stay even though he is removable. The main ones:

1. Asylum, withholding of removal and Convention Against Torture protection. These are the protection claims covered in Asylum Was Built for Persecution, So Why Does Waiting Count as Winning? and Asylum, Refugee, Parole and TPS, Four Statuses People Mix Up.
2. Cancellation of removal for permanent residents. Under section 240A(a), a green-card holder with at least five years as a permanent resident and seven years of continuous residence after being admitted in any status, and no aggravated felony conviction, may ask the judge to cancel the removal.
3. Cancellation of removal for others. Under section 240A(b), a person without a green card must show ten years of continuous presence, good moral character, no disqualifying convictions, and that his removal would cause exceptional and extremely unusual hardship to a spouse, parent or child who is a citizen or permanent resident. Congress capped the number of these grants at 4,000 a year.
4. Adjustment of status, for a person who is eligible for a green card, for example as the spouse of a citizen, and who qualifies to apply from within the country.
5. Voluntary departure under section 240B. The person agrees to leave on his own, within a set period, in exchange for avoiding a formal order of removal and some of its consequences. The limit is up to 120 days if requested early in the case, and up to 60 days if granted at the end.

The applicant carries the burden of proof for relief. For the charge itself, if the person was lawfully admitted, the government must prove deportability by clear and convincing evidence under section 240(c)(3). If he was never admitted, the burden is on him to show that he is clearly and beyond doubt entitled to be admitted or is lawfully present, under section 240(c)(2). That difference in who carries the burden is one reason entry history matters so much.

Step 5: The individual hearing

If relief is requested, the case gets an individual hearing, also called the merits hearing. It is a bench trial, with no jury. The person testifies, through an interpreter if needed, and presents documents and witnesses. The government attorney may cross-examine. The judge decides, sometimes from the bench and sometimes in a written decision weeks later.

Who is the judge? An immigration judge is an attorney employed by the Department of Justice and appointed by the Attorney General. He is not an Article III judge with life tenure. He serves inside the executive branch, and the Attorney General can review and reshape his decisions. That is a feature of the design that surprises people on both sides: the "judge" in this courtroom is an employee of the same administration whose policies he is applying. Arguments about whether that is a sound arrangement are legitimate, and conservatives who care about the separation of powers should engage them. For the larger questions about the federal courts and the executive branch, see One Judge, One Injunction, One Country, and How Federal Courts Block Policy.

Step 6: The appeal to the Board of Immigration Appeals

Either side can appeal an immigration judge's decision to the Board of Immigration Appeals (BIA), another part of EOIR, by filing a notice of appeal within 30 days. While a timely appeal is pending, the order generally is not final and removal does not proceed. The BIA reviews the record, may hear no new testimony, and issues a decision. Its members, like the judges, are Justice Department appointees.

Step 7: Petition for review in a federal circuit court

When the BIA affirms a removal order, it becomes a final order. The person can then file a petition for review in the U.S. Court of Appeals, within 30 days, under INA section 242(b)(1). This is where real Article III judges enter the picture. Three things to know:

• A petition for review is the sole and exclusive means of judicial review of a removal order, under section 242(a)(5). That is why a district judge cannot simply step in and stop an individual removal, though he may hear certain challenges to government policies.
• Filing the petition does not by itself stop removal. The person must ask the court for a stay, and the court decides. That is section 242(b)(3)(B).
• Congress limited review of certain discretionary decisions and of removal based on certain criminal convictions, though courts can still hear constitutional claims and questions of law.

The circuit court can uphold the order, send the case back, or, in rare cases, find that the person is not removable. It is slow, and each circuit has its own approach to the law.

Step 8: Executing the order, the plane ride

Once the order is final and no stay is in place, ICE's Enforcement and Removal Operations carries it out. That sounds simple. It is not, for reasons that rarely make the news.

• Travel documents. A country has to accept its own citizen. ICE usually needs a passport or travel document from the destination country's government, and the process can take weeks or months.
• Refusing countries. Some governments are slow or unwilling to take their nationals back. The statute, in section 243(d), lets the Secretary of State stop issuing visas in the offending country as a sanction, and the tool is used sparingly.
• The six-month presumption. In Zadvydas v. Davis (2001), the Supreme Court held that the Constitution does not allow indefinite detention of a person who has a final order but cannot be removed, and it treated about six months as the presumptively reasonable period, after which the government must show a significant likelihood of removal in the reasonably foreseeable future. That is a main reason someone with a final order can end up released rather than on a flight.
• Logistics. Flights, escorts and scheduling cost money, and capacity is finite.

The shortcuts

Not every removal passes through every step above.

• Expedited removal, INA section 235(b)(1). An officer orders removal without a hearing in certain cases, subject to the credible-fear screen if the person claims fear. See The 1996 Immigration Law Behind Most of Today's Border Fights.
• Reinstatement of a prior order, section 241(a)(5). A person who was removed and comes back illegally has his old order reinstated, and he generally cannot reopen it or seek most relief, though he can seek protection if he expresses fear of return.
• Administrative removal of aggravated felons, section 238(b), for certain non-permanent residents.
• Stipulated removal and voluntary departure, where the person agrees to go.

For a local official, the practical connection to all this is the cooperation between sheriffs and ICE, covered in A County Sheriff's Playbook for Joining ICE Under 287.

Why queues build

Put the steps side by side and you can see where the lines form. Government officers can issue more NTAs than a limited number of judges can hear. The master calendar sessions are crowded, and continuances stretch cases out. The detained docket moves faster, so non-detained cases wait longer. Interpreters, evidence and attorneys have to line up. An appeal at the BIA adds months. A petition in a circuit adds more. A final order does not equal a flight. And a case that is closed administratively, or an order that cannot be executed, becomes part of the unresolved pile. EOIR publishes statistics on pending cases and on how long they take, and a reader who wants the current figures should get them there rather than from a talking head.

The strongest objection, and a fair verdict

A critic will say: "This is a maze built to wear people down. Eight steps and an appeal at every one. A system this slow is cruel to the people in it."

The honest answer is that both halves of that are partly true. The process has real due-process protections, and conservatives who value the Fifth Amendment, which speaks of "persons," not "citizens," should defend them. But a process with a multi-year line for every step is not a protection. It is a delay that benefits whoever is best at using the clock, which is neither the citizen nor the person with the strongest claim. The reform is not to cut the steps. It is to put enough judges, officers and travel-document diplomacy behind them that each one takes weeks, not years.

The bottom line

• A regular removal case runs: Notice to Appear, custody decision, master calendar hearing, relief applications, individual hearing, BIA appeal, petition in a federal circuit court, then execution of the order.
• Immigration judges work for the Justice Department, not for DHS and not as lifetime judges. The arresting agency and the hearing agency are separate.
• The shortcuts are expedited removal, reinstatement of prior orders and administrative removal, and each carries a narrower right to a hearing.
• The plane ride is the hardest step: a destination country must accept the person, and the Supreme Court limits long detention when removal is not foreseeable.
• If you want to argue about deportations, learn the steps and ask which one is the bottleneck. Call your representatives about funding for judges and travel-document diplomacy rather than slogans.