Criminal Defense of Immigrants

 

Immigration proceedings are initiated upon the DHS issuing a Notice to Appear (“NTA”)[243] on Form I-862, to the noncitizen and filing that NTA with an immigration court.[244]  The NTA serves as written notice to a noncitizen of the initiation of proceedings, and must be provided to the noncitizen in person or by mail to the noncitizen or the noncitizen’s attorney of record.[245]

 

                The NTA must contain the following information:

 

(a)      The nature of the proceedings (i.e., “removal proceedings”);

(b)      The legal authority under which the proceedings are conducted (i.e., INA § 240, 8 U.S.C. § 1229a);

(c)       The acts or conduct alleged to be in violation of law;

(d)      The charges against the noncitizen and the statutory provisions alleged to have been violated.

(e)       That the noncitizen may be represented by counsel.

(f)       Notice the noncitizen must immediately provide a current address and telephone number; and

(g)       The time and place at which proceedings will be held, as well as the consequences for failure to appear.[246]

 

An NTA generally names the noncitizen as “respondent” to the NTA, and categorizes the noncitizen as either (1) an “arriving alien”; (2) a noncitizen present without admission or parole; or (3) a noncitizen admitted to the United States. 

 

The NTA then has a space for factual allegations (often made on a separate sheet), and then another space for the charges for violation of provisions of the INA based upon the factual allegations (also often made on a separate sheet).  The factual allegations generally state that the respondent is not a citizen of the United States, is a citizen of a specified foreign country, current immigration status and how it was obtained, and then any criminal activity, history, and sentence upon which the removal charges are based.  The charges themselves directly refer to the various grounds of inadmissibility or deportability by section, and describe the statutory ground of removal changed.  The DHS may lodge additional allegations and charges against a respondent at any time during the proceeding before the immigration judge.  These additions must be presented in writing and must be read in open court.[247]

 

In most cases, the NTA will identify the immigration court at which the noncitizen must appear,[248] but will leave the date and time of the hearing to be set by the immigration court, which will send a hearing notice to the noncitizen after the NTA has been filed with the immigration court.  In order for the noncitizen to have an opportunity to find counsel, the court is not allowed to schedule a hearing earlier than 10 days after the NTA has been served on the noncitizen.[249]

 

[243] Formerly known as an Order to Appear (“OSC”) prior to April 1, 1997.

[244] INA § 239, 8 U.S.C. § 1229; 8 C.F.R. § § 3.13-3.14.

[245] 8 C.F.R. § 1003.27(d).

[246] INA § 239(a)(1), 8 U.S.C. § 1229(a)(1).

[247] 8 C.F.R. § 1003.30.

[248] A motion for change of venue to another immigration court may be granted for good cause. 8 C.F.R. § 1003.20.

[249] INA § 239(b)(1), 8 U.S.C. § 239(b)(1).