Preparing for Immigration Court While in Detention
What Detained Immigrants and Their Families Need to Know By Slatton & Hass Immigration Advocates, PLLC
When ICE detains someone, the legal process does not pause. Immigration court proceedings move forward whether a person is ready or not, and in many cases, they move faster for people who are detained than for those who are not. Understanding what to expect, what rights you have, and how to build the strongest possible case from inside a detention facility can make all the difference.
This guide is for detained immigrants, their families, and anyone trying to navigate one of the most stressful situations a person can face.
What Is Immigration Court?
Immigration court is not a criminal court. It is an administrative court that falls under the Executive Office for Immigration Review (EOIR), which is part of the U.S. Department of Justice. The judge presiding over your case is called an Immigration Judge (IJ), and the attorney arguing against you is an ICE attorney representing the Department of Homeland Security.
There is no jury. There is no public defender provided to you for free. The immigration judge decides your case alone, and the burden of proof in many types of cases falls on you, not the government.
Understanding this from the start helps you take the process seriously and prepare accordingly.
Types of Hearings You Will Face
Master Calendar Hearing
This is your first appearance before the immigration judge. It is typically short, sometimes only 5 to 10 minutes. At this hearing, the judge will confirm your identity, explain the charges against you (contained in a document called the Notice to Appear, or NTA), ask whether you have an attorney, and set future hearing dates.
Do not waive any rights at this hearing without speaking to an attorney first. Do not admit to anything without understanding what you are admitting to. If you do not have an attorney yet, tell the judge you need more time to find one.
Individual (Merits) Hearing
This is the full hearing where your case is decided. You and your attorney present your full case, including testimony, documents, and legal arguments. The ICE attorney will cross examine you and challenge your evidence. The judge will then issue a decision, either in court that day or in writing later.
This hearing can last anywhere from one hour to a full day or more depending on the complexity of your case.
Telephonic or Video Hearings
Many detained immigrants appear before an immigration judge via video screen rather than in person. The judge may be located in a completely different city. This is common in remote detention facilities. Do not let this catch you off guard. Prepare the same way you would for an in person hearing. If you have an attorney, confirm in advance how they will appear and how you will communicate during the hearing.
Your Rights in Immigration Court
Even in detention, you have rights. Know them.
You have the right to be represented by an attorney. The government does not have to pay for one, but you have the right to hire one. Many nonprofit organizations provide free or low cost representation to detained immigrants. Ask the detention facility for a list of legal service providers.
You have the right to a competent interpreter. If English is not your primary language, you are entitled to an interpreter provided by the court. If you are not understanding what is being said, say so immediately.
You have the right to examine evidence against you. The government must give you access to the documents and evidence they plan to use in your case.
You have the right to present evidence and witnesses. You can submit documents, call witnesses to testify on your behalf, and present expert testimony if relevant.
You have the right to appeal. If the immigration judge rules against you, you can appeal the decision to the Board of Immigration Appeals (BIA). If the BIA rules against you, further appeals to federal court are possible in many cases.
You have the right to apply for relief. Even if the government is trying to deport you, you have the right to apply for any form of immigration relief you may qualify for. The judge cannot deny you the opportunity to apply.
Understanding the Notice to Appear (NTA)
The Notice to Appear is the charging document that starts your immigration court case. It lists the factual allegations the government is making against you and the legal grounds for removal.
Read it carefully. Every word matters.
Common grounds of removal listed on an NTA include entering without inspection, overstaying a visa, having a criminal conviction that triggers deportability, or being present without valid immigration status.
You and your attorney will have the opportunity to admit or deny each allegation. Do not admit to anything without understanding the legal consequences. Admitting to an allegation that is incorrect or legally irrelevant can seriously harm your case.
If you were not given an NTA, or if you do not understand what yours says, tell your attorney immediately.
Forms of Relief: What You May Be Able to Apply For
Removal is not automatic. Even if the government has grounds to deport you, you may qualify for relief that allows you to stay. Common forms of relief include the following.
Asylum If you have been persecuted or fear persecution in your home country based on your race, religion, nationality, political opinion, or membership in a particular social group, you may qualify for asylum. There are strict time limits: in most cases, you must apply within one year of arriving in the United States. However, there are exceptions, and an attorney can help you evaluate whether you qualify.
Withholding of Removal If you do not qualify for asylum, you may still qualify for withholding of removal, which prevents the U.S. government from sending you to a country where your life or freedom would be threatened. The standard is higher than asylum, but it has no one year filing deadline.
Convention Against Torture (CAT) Protection If you would face torture by or with the acquiescence of the government in your home country, you may qualify for protection under the Convention Against Torture. This form of relief has no one year deadline and does not require you to show persecution based on a protected ground.
Cancellation of Removal for Non-Permanent Residents If you have lived continuously in the United States for at least 10 years, have had good moral character during that time, and your removal would cause exceptional and extremely unusual hardship to a U.S. citizen or lawful permanent resident spouse, parent, or child, you may qualify for cancellation of removal.
Cancellation of Removal for Lawful Permanent Residents If you are a green card holder, you may qualify for a different form of cancellation if you have been a lawful permanent resident for at least five years, have lived continuously in the United States for at least seven years, and have not been convicted of an aggravated felony.
VAWA Cancellation If you have been battered or subjected to extreme cruelty by a U.S. citizen or lawful permanent resident spouse or parent, you may qualify for special cancellation of removal under the Violence Against Women Act, regardless of gender.
Adjustment of Status In some circumstances, a detained person may be eligible to apply for a green card through a qualifying family member or other petition, even while in removal proceedings.
Voluntary Departure If you do not qualify for any other form of relief, you may be able to request voluntary departure, which allows you to leave the country on your own rather than being formally removed. This preserves certain options for future immigration applications that a formal order of removal would close off.
How to Build Your Case from Detention
Preparing for immigration court from inside a detention facility is hard. Access to phones, legal materials, and your own documents is limited. But it is not impossible. Here is how to make the most of the time you have.
Communicate with your attorney as much as possible. Your attorney should be visiting you, calling you, or both. If you cannot reach your attorney, tell a family member on the outside to follow up. Do not go weeks without contact.
Write everything down. If you are applying for asylum or other relief based on what happened to you in your home country, start writing your account now. Dates, names, places, what happened, who did it, why it happened, and who witnessed it. Memory fades under stress. Get it on paper.
Make a list of everyone who can help. Think about family members, former employers, community members, religious leaders, and anyone else who knows you and can provide a letter or testimony. Get their contact information to your attorney.
Ask family members to gather documents. Your family on the outside can help by gathering your tax returns, pay stubs, birth certificates, school records, letters of support, and any other evidence. Give them a specific list.
Request your immigration file. Your attorney can file a Freedom of Information Act (FOIA) request with USCIS and ICE to obtain your immigration records. These files often contain important information about your history and the government's case against you.
Take care of your mental health. Detention is psychologically damaging. Many facilities have mental health staff. Use them. Courts can also consider medical and psychological evidence as part of your case, particularly in asylum and hardship claims.
What Happens If You Lose
If the immigration judge issues an order of removal against you, you are not out of options.
Appeal to the Board of Immigration Appeals (BIA). You have 30 days from the date of the judge's decision to file a Notice of Appeal. This is a hard deadline. Missing it can waive your right to appeal entirely. The BIA reviews the immigration judge's decision for legal errors.
Request a Stay of Removal. If you file an appeal, you can also request a stay of removal, which temporarily prevents ICE from deporting you while the appeal is pending. This must be requested promptly.
Federal Court Review. If the BIA rules against you, you may be able to petition a federal Circuit Court of Appeals for review. This is a complex process that requires an experienced immigration attorney, but it is a real option in many cases.
Motion to Reopen. In certain circumstances, you can file a motion to reopen your case even after a final order of removal, particularly if there is new evidence, changed country conditions, or if your prior representation was seriously deficient.
Do not wait to explore these options. Every day matters when there is a removal order.
A Note for Families
If your loved one is detained and in removal proceedings, your support matters more than you know. Here is what you can do.
Stay in contact and pass information. You are the connection between your loved one and the outside world. Gather documents, reach out for support letters, attend hearings when possible, and keep communication open with the attorney.
Attend the hearing. Immigration hearings are generally open to the public. Your presence in that courtroom sends a message to the judge about your loved one's ties to the community and to you.
Do not give up. Cases that look impossible at first can change with the right evidence, the right attorney, and persistence. We have seen it happen.
We Are Here to Help
At Slatton & Hass Immigration Advocates, PLLC, we represent detained immigrants at every stage of their case, from the first Master Calendar Hearing through appeals. We fight hard because we know what is at stake.
If your loved one is detained and facing immigration court, do not wait. Contact us today.
Slatton & Hass Immigration Advocates, PLLC Uncompromising Advocacy for Immigrants slattonandhass.com | DMV Area & Nationwide
