04. Immigration Court

Overview of the Immigration Court Process

In general, there are three ways that people end up in front of an Immigration Judge. The first, is they are stopped trying to enter the United States at the U.S. Mexico Border, the U.S. Canadian border, or at an airport. The other way is that the individual overstays his or her visa and somehow comes in contact with you Immigration Customs Enforcement (ICE), whether through the criminal courts system or some other way. The third way, is that the individual applies for another Immigration status, is denied, and then referred to the Immigration Judge. This third way includes people who apply for “affirmative asylum,” lost, and were then referred to the Immigration judge to renew their claim. Affirmative asylum is generally for those individuals who enter with a visa (i.e. tourist or student visa) and then apply for asylum with USCIS. They are not in removal proceedings in front of an Immigration Judge.   Remember, if you are referred to the Immigration Judge, don’t panic, it is another process by which you ask for permission to remain in the United States. It is however scary, because many people are afraid that they are going to be detained. If you don’t have a criminal record, it is unlikely you will be locked up. The U.S. Immigration system just doesn’t have that many prisons. If you are being held by U.S. Border Patrol, you may be detained if you do not qualify for Asylum. We will cover that issue below.

The policies and timing of how you will be processed is subject to frequent changes, so this example is intended to be generic. At some point, you will be interviewed by a Border Patrol Officer who will explore whether you have been previously removed from the United States or previously turned back from the border (a process called expedited removal). The Border Patrol Officer will also check to see if you have a criminal history. They will then move on to ask questions about your family ties in the United States and why you are trying to enter the United States. In this line of questioning the Border Patrol Officer will also ask how you came up to the border. The questioning is for a lot of reasons, but some of the reasons for this type of questioning is to determine whether you are part of a smuggling cartel, or maybe the victim of human trafficking. Finally, the Border Patrol Officer will ask you some questions about whether you are afraid to return to your country of origin. If you are afraid, you will be referred for another interview called a “Credible Fear Interview.”  During that interview you will be asked to detail why you are afraid to return to your country. If you answer the questions to the satisfaction of the interviewer, and he or she believes you, you will generally be referred to an Immigration Judge for a hearing. The determination is often referred to as a “Credible Fear Determination.”    Important Note: the policy on detention and release at the border is constantly changing so it is possible that even without a “Credible Fear” you might be released. Again, this is a generic example of the process at the Border.