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July 1, 2014

Notice to Appear: What is Next?

Author: New York Immigration Attorney Alena Shautsova

Notice to appear (the “NTA”) is a charging document in Immigration. It outlines the main charges or allegations the government is presenting to deport or remove a person from the United States. Under INA § 239(a)(1) (2012), an NTA should include: the nature of the proceedings, the legal authority under which the proceedings are conducted, the acts or conduct alleged to be in violation of the law, the charges against the noncitizen and the statutory provisions alleged to have been violated. An NTA can be served personally or via regular, first class mail. It does not have to be served via certified mail. It is also may be served on an attorney of record.

A person may be charged with either inadmissibility under INA 212 or deportability under INA 237. A person will be charged with inadmissibility if he or she was not admitted into the US or paroled. A lawful permanent resident with a certain criminal convictions coming back form a trip abroad may also be charged as an arriving alien under inadmissibility ground(s). It is very important to check if the grounds of the removal are stated correctly: it will determine the burden of proof on the alien, and possible defenses.

Another important element of the NTA is time and place of the proceedings. Often, the time and places are outlines as TBD (to be determined); it means that the NTA was just issued and an Immigration Court has not yet docketed the case for its calendar. The government shall provide at least 10 days from the service of the notice and before the start of the removal proceedings so that the person can find an attorney.

NTA basically starts the removal proceedings; after it is filed it is possible to ask the Immigration court to change venue or terminate the proceeding. However, before the NTA is filed, the court lacks jurisdiction to make decisions on any motions.

The charges in NTA have to be examined closely and the charged person should seek representation as soon as he or she was served with the NTA. Sometimes, a person may know that the Notice would be issued. In such a case, he or she shall contact an attorney ASAP to discuss possible defense options and strategy.

A person whose case is filed with the court, will have to appear before an Immigration Judge. Failure to appear will result in a removal order issued against the person and possible 5 year bar to apply for any immigration benefits.  The first hearing in Immigration court is called a Master hearing; it is usually very short and during it  the court and attorneys decide how they will be proceeding with the case: what defenses and application an alien will file; what documents the government would like to see;  what is the time frame of filings, etc.

Contact an Immigration attorney if you have questions regarding Notice to Appear: 917-885-2261.