Criminal Court Proceedings

Court proceedings involving immigration matters are administered by the Executive Office for Immigration Review, an office of the United States Department of Justice. This office is separate from the agencies that handle immigration applications and enforce immigration laws, which are part of the Department of Homeland Security. As of September 2011, there are sixty immigration courts in the United States, including two in Chicago. Chicago immigration attorney Shelley Kalita has navigated this court system many times and can help you through the ordeal of a removal proceeding.

Immigration courts primarily handle removal cases, in which the court must decide whether to remove a person from the country whom the government alleges is here illegally. “Removal” used to be known as “deportation.” The Department of Homeland Security may bring a case for the removal of a person because the person is not eligible to be in the United States or has engaged in conduct that authorizes the government to deport him or her. Reasons for this may include entry into the United States without proper paperwork or review, conviction of certain criminal offenses, or certain fraudulent acts such as falsely claiming U.S. citizenship. In any removal case, the government has the burden of proving legal cause for removal.

A case begins when the government delivers notice to the person, known as the respondent, stating the reason for seeking to remove the person and providing a court date. The respondent may deny the government’s claims and state one or more defenses. The respondent may also choose to apply for certain forms of relief, depending on the respondent’s circumstances. For example, if a respondent can claim a well-founded fear of persecution in his or her home country, the respondent may make an asylum application. If a respondent has dependents who are U.S. citizens, and removal would result in extreme hardship for them, the respondent may apply for cancellation of removal. Eventually the immigration judge may conduct a final hearing to determine whether to remove the respondent.

Immigration court proceedings are administrative in nature, meaning that they are separate from the federal judicial system. There are no jury trials, and immigration judges have broad discretion to decide cases. Although removal to another country may in some circumstances seem like punishment, by law the immigration court system is considered civil rather than criminal. Some of the principles commonly found in criminal cases, such as Fourth Amendment rights regarding searches by law enforcement and Fifth Amendment rights against self-incrimination, do not apply the same way as in a criminal trial. Those protections still exist, but they are not necessarily applied as strictly. Decisions of an immigration judge may be appealed to the Board of Immigration Appeals in the Washington, D.C. area.

Immigration laws, which are set at the federal level, are complex and difficult to fully grasp while in the midst of a removal case. An experienced and skilled Chicago immigration lawyer can explain your rights and work to see you are treated fairly throughout the process. Contact Shelley Kalita online or by phone at (312) 829-2465 to schedule your free consultation.

Web Resources

Executive Office for Immigration Review at a Glance,
Department of Justice

Executive Office for Immigration Review Overview,
American Immigration Lawyers’ Association

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