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New Practice Advisory Regarding Notices to Appear

Released on Mon, Jun 30, 2014

The American Immigration Council, ABA Commission on Immigration and Penn State Law’s Center for Immigrants’ Rights are pleased to announce the release of the practice advisory, Notices to Appear:  Legal Challenges and Strategies.

The Notice to Appear is the charging document used by the Department of Homeland Security (DHS) to notify a noncitizen about immigration charges and a future immigration court hearing. Filing a Notice to Appear (“NTA”) with the immigration court places an individual in a removal proceeding before a judge and is a significant step in the removal process. Various officials within the three major immigration-related components of the Department of Homeland Security — Immigration and Customs Enforcement (ICE), United States Citizenship and Immigration Services (USCIS) and Customs and Border Protection (CBP) — are empowered to issue NTAs, which trigger removal proceedings in immigration court. At various points after an NTA is issued, an attorney may negotiate with DHS to obtain a favorable exercise of prosecutorial discretion. DHS has discretion either to file the NTA with the court, thus going forward with removal proceedings, to drop or revise certain charges, or to cancel the NTA and thus end the removal proceedings. After the NTA is filed, DHS can exercise discretion through a joint motion asking the judge to administratively close or terminate proceedings. The decisions made by DHS about Notices to Appear are not just ministerial, but can impact the lives of noncitizens and their families in significant ways.

This practice advisory provides innovative legal and procedural arguments and strategies for seeking prosecutorial discretion, and is intended for attorneys representing noncitizens 1) who are likely to be issued NTAs, 2) who have been issued NTAs that have not been filed with the immigration court, or 3) who have been issued NTAs that have been filed. It provides an overview of the legal requirements for an NTA and strategies available to attorneys to cancel, mitigate, or challenge the contents of an NTA.

For a complete list of all American Immigration Council Practice Advisories, please visit the Council’s website.

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For more information, please contact clearinghouse@immcouncil.org

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