Alien Individual Hearing

Another type of hearing that occurs in the immigration process is the Individual Hearing.

Assuming that the alien’s case is not resolved at a Master Calendar Hearing (e.g., because the alien admits the veracity of the charges in the Notice To Appear), the immigration court will schedule an Individual Hearing.

These hearings are similar, but not identical, to trials in a civil or criminal proceeding. The parties to the proceeding are the alien and ICE. An IJ presides over the proceeding. After confirming that the alien’s name and A-Number are correct, the IJ verifies that ICE has served the Notice To Appear (NTA) on the alien. If the alien had not already pleaded to the charges in the NTA, the IJ has the alien do so. I.e., the alien must either admit or deny each factual allegation in the NTA, and then concede or deny deportability. The IJ also permits the alien to designate the country to which he/she wishes to be sent should the proceeding result in an order of removal.

The initial burden of proof at an Individual Hearing is on ICE to prove by clear and convincing evidence the alien in not a United States citizen. The burden then shifts to the alien to prove-again by clear and convincing evidence-that he/she is lawfully present in the United States as a result of having been admitted at a port of entry. If the alien fails to do so, the merits part of the case is over. If the alien does offer such proof, the burden of proof shifts back to ICE to prove by clear and convincing evidence the validity of the alleged grounds of deportability.

If the Immigration Judge finds that the alien is deportable, the hearing may enter a second phase in which the alien may apply for one or more forms of relief from removal. Examples include voluntary departure, cancellation of removal, adjustment of status, withholding of removal, and asylum. The alien first attempts to show that he/she meets all the requirements for the relief requested. ICE may then present any evidence it believes relevant to the request. The Immigration Judge may grant a continuance to consider the request.

Once both parties have presented their evidence, the Immigration Judge will render a decision-either orally at the hearing, or in written form at a later date. This decision must include a finding on deportability and the analysis supporting that decision, if applicable, a designation of the country to which the alien is to be removed, and a finding on the alien’s applications for one or more forms of relief from removal.

Either party may file an administrative appeal with the Board of Immigration Appeals (BIA). Like immigration courts, the BIA is part of EOIR (which in turn is part of DOJ). If a party wishes to file an appeal with the BIA, they must do so within 30 days of the IJ’s decision. Some decisions may also be subject to review in federal courts.

Author: Doug Wood

Mr. Wood grew up in the Tidewater (Norfolk/Virginia Beach) area of Virginia. After earning a BA in History from the College of William and Mary in 1963, he attended the Naval Officer Candidate School in Newport, Rhode Island. He received his commission in March, 1964, and went on the serve five years on active duty. He then enrolled in the Marshall-Wythe School of Law at William and Mary, and graduated in 1972. Mr. Wood spent his legal career with a variety of federal government agencies. The last 11 of this were with the (then) Immigration and Naturalization Service. For the last five of these years he was the lead attorney on all matters relating to immigration bonds. Upon his retirement in 2001, he began a career as a consultant to a number of immigration bond companies. Although retired from the bar, he continues to provide consulting services to immigration bond companies around the country.

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