The "Notice to Appear" in Removal Proceedings

Removal Proceedings are commenced by the filing and service of a Notice to Appear (NTA) in the Immigration Court.

A Notice to Appear contains several key elements.

First, the notice will identify that the alien is either, (1) seeking admission to the United States, (2) admitted to the United States but deportable, or (3) an alien present in the United States without having been admitted.

Second, the notice will set forth the factual allegations the government believes give it a basis to remove the alien from the United States.

Third, the notice will set forth with specificity what portion of the INA it believes gives it legal power to remove the alien from the United States.

Fourth, the notice will specify a date, time, and place for the alien to present him or herself to the Immigration Court.

The Notice to Appear also contains some very important warnings. The most critical of these warnings is the address change notification warning. Once served with the notice, the alien is required to advise the Immigration Court within five days of moving or changing address. Court dates frequently get changed and notices of such changes are sent by mail. If an alien has moved and failed to notify the Court and does not get notice of a change of court date, he or she can be ordered removed in absentia and there may be little to nothing an attorney can do to get that order reversed.

Finally, the Notice to Appear will contain a proof of service upon the alien showing the manner in which the notice was served.

At the initial master hearing before the Immigration Court, the judge will ask several questions regarding the Notice to Appear. The judge will asked if the alien concedes that he or she is the alien named in the Notice, whether the alien concedes that the NTA was properly served, whether the alien admits or denies the factual allegations in the NTA, and whether the alien concedes the ground or grounds of removability specified in the NTA.

It is important to recognize that he NTA is not sacrosanct. Often it has been prepared by a non-attorney. It is a grave mistake to assume that it is accurate and it must be reviewed carefully by an attorney before pleadings are taken. It is the government's burden to prove the factual allegations and the charged ground of removability. However, once service is acknowledged and removability is conceded, the government is relieved of its burden of proof. Even the proof of service portion contains information that may effect legal rights (i.e. "the stop-time rule"). I have lost count of how many times I have taken over a case from inexperienced or incompetent counsel who conceded removability when there were real issues concerning removability. Not every judge will permit an alien to change to his or her pleading at a later date. ESPECIALLY when the charge of removability is predicated on a criminal conviction. It is generally better to let the judge make a finding of removability than to concede removability. This allows you to preserve the issue of removability on appeal and to take advantage of subsequent changes in the law which arise frequently in the criminal immigration context.