After the formal removal hearings, the immigration judge may do the following:
• issue a removal order;27
• find the respondent removable and allow him or her to request voluntary departure and leave the United States at his or her own expense;28
• grant relief or protection from removal, such as asylum; or
• terminate or dismiss a case.29
The immigration judge may terminate a case in some circumstances, including, for example, if the respondent establishes eligibility for U.S. citizenship or demonstrates that the charges on the NTA are substantively or procedurally defective.30 The immigration judge may dismiss a case when DHS moves to dismiss proceedings, for example, as a matter of prosecutorial discretion.31 Parties may appeal an immigration judge’s decision within 30 days to the Board of Immigration Appeals, EOIR’s appellate component.32
An immigration judge may also administratively close proceedings, which means cases are temporarily moved to an inactive docket, typically to allow the respondent to apply for a form of relief outside of immigration court; for example, in a case where the respondent is pursuing a family-based immigrant visa with USCIS.33 While an immigration judge generally may grant administrative closure when that request is unopposed, the immigration judge has discretion to determine whether an opposed request for administrative closure is warranted.34
Do asylum applicants have legal representation during formal removal proceedings?
The INA provides respondents with the privilege of being represented by counsel at no expense to the government.35 Respondents may obtain counsel at their own expense, obtain pro bono
As of the third quarter of FY2024, among all pending immigration court cases, 32% of respondents were represented.38 Among pending cases that had at least one hearing, 50% were represented.39 Among pending asylum cases, 62% were represented; and among completed asylum cases, 80% were represented.
Under certain circumstances, the government may provide counsel to a respondent. Under EOIR’s National Qualified Representative Program (NQRP), counsel is provided to unrepresented detained respondents with mental disorders and disabilities whom immigration judges or the Board of Immigration Appeals have deemed to be “mentally incompetent to represent themselves in proceedings.”40
The U.S. Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR), which is responsible for the cases and custody of unaccompanied alien children (unaccompanied children; UAC) also funds representation for some children under requirements specified in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA; P.L. 110-457).41 As of the third quarter of FY2024, 57% of pending UAC cases were represented; among cases pending more than one year, 62% were represented.42
What is expedited removal?
Expedited removal is a streamlined removal process that typically applies to certain arriving aliens and aliens who recently entered the United States without inspection. Under 8 U.S.C. §1225(b)(1), an immigration officer may order the removal of a person arriving in the United States without a hearing or further review of the order to remove the individual if that person is inadmissible because he or she lacks valid entry documents or attempted to obtain admission by fraud or misrepresentation.43 In addition, Section 1225(b)(1) authorizes the DHS Secretary44 to apply the expedited removal process to persons present in the United States who have not been admitted or paroled45 if they have been in the country less than two years and are inadmissible
Based on this statutory authority, DHS has employed expedited removal for three categories of inadmissible aliens: (1) individuals arriving at U.S. ports of entry (e.g., a land border-crossing or an international airport), (2) individuals who arrived in the United States by sea within the last two years and have not been admitted or paroled by immigration authorities, and (3) individuals found in the United States within 100 air miles of the border within 14 days of entering the country who have not been admitted or paroled by immigration authorities.47 During the expedited removal process, a CBP agent generally asks the alien questions to assess whether the individual fears returning to their home country, including asking why they left their home or country, whether they have any fear of being returned, and whether they would be harmed in their country.48
Although a person in expedited removal proceedings typically has no right to a hearing or review of the expedited removal order, there is an exception for individuals who express an intent to apply for asylum, a fear of persecution or torture, or a fear of returning to their home country.49 In these cases, the immigration officer must refer the individual for an interview with an asylum officer (see “Who conducts credible fear interviews?”) to make a credible fear determination.50
What is a credible fear determination?
A credible fear determination results from a screening process that evaluates whether a person placed in expedited removal proceedings might qualify for asylum, withholding of removal, or protection from removal under the CAT.51 Federal statute defines a “credible fear of persecution” as “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum.”52 Federal regulations define a “credible fear of torture” as “a significant possibility that the alien is eligible for [protection] under the Convention Against Torture.”53 As discussed in this report, depending on the outcome of the credible fear interview, the applicant may potentially apply for asylum and related protections in formal removal proceedings.