Understanding the Notice to Appear in U.S. Immigration

A Notice to Appear (NTA) is an official document issued by U.S. immigration authorities when they start deportation (removal) proceedings against a noncitizen.

Think of it like a court summons—it tells the person:

1. Why the government thinks they should be deported (e.g., visa overstay, criminal record, immigration fraud, etc.).
2. Where and when they need to appear in immigration court.
3. What charges the government is making against them under U.S. immigration laws.

Once someone gets an NTA, they must go before an immigration judge, who decides whether they can stay in the U.S. or if they must leave.

Why Does This Matter?

• If someone applies for an immigration benefit (like a green card or work visa) and gets denied, they might also get an NTA—meaning the government is starting the deportation process against them.
• Even if someone has been living in the U.S. for a long time, getting an NTA can put them at risk of removal.

When a Notice to Appear (NTA) is issued, the person must go through removal proceedings in immigration court. Here’s a step-by-step breakdown of what happens:

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1. Master Calendar Hearing (First Court Appearance)

• This is a short, preliminary hearing before an immigration judge.
• The judge asks the person (or their attorney) if they agree or disagree with the government’s allegations in the NTA.
• The person can:
  • Admit to the charges and possibly seek voluntary departure.
  • Deny the charges and fight the case.
• If fighting the case, the judge schedules a Merits Hearing (final hearing).
• If the person misses this hearing, they get an automatic deportation order (in absentia removal).

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2. Merits Hearing (Final Hearing)

• This is a full trial where both sides present arguments:
  • Government attorney tries to prove the person is removable.
  • The individual (or their lawyer) can present defenses, evidence, and witness testimony.
• Common defenses include:
  • Asylum (fear of persecution in home country).
  • Cancellation of Removal (for those with long-term residence and strong U.S. ties).
  • Adjustment of Status (e.g., marriage to a U.S. citizen).
  • Waivers (if the person is eligible to fix their status).
• The judge makes a decision—either ordering removal (deportation) or granting relief (allowing the person to stay).

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3. Appeals Process (If Denied)

• If the judge orders deportation, the person can appeal to the Board of Immigration Appeals (BIA) within 30 days.
• If the BIA denies the appeal, they may still appeal to a federal court in certain cases.

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What Happens If Someone is Ordered Deported?

• ICE can detain and remove the person.
• In some cases, they may be allowed voluntary departure (leaving on their own to avoid a deportation record).
• If they fail to leave, they may be banned from returning for years or permanently.

The timing of the Master Calendar Hearing (MCH) after receiving a Notice to Appear (NTA) can vary depending on several factors, including court backlog, case priority, and local immigration court schedules. However, here’s a general guideline:

Typical Timeline:

1. Within a Few Weeks to Several Months
   • The Master Calendar Hearing is usually scheduled within 30 to 90 days from the date the NTA is filed with the immigration court.
   • However, due to immigration court backlogs, it can sometimes take several months or even over a year before the first hearing takes place.
2. Immediate Hearings for Detained Cases
   • If the person is detained by ICE, the hearing is typically scheduled much sooner—within a few days to a few weeks.

Key Factors Affecting Timing:

• Court backlog: Some immigration courts are overwhelmed with cases, leading to long delays.
• Case priority: Certain cases (like detained individuals, asylum seekers in expedited removal, or national security threats) are scheduled faster.
• Location: Some courts process NTAs faster than others based on staffing and workload.

Important Note:

• The date on the NTA might not always be accurate because USCIS and ICE sometimes issue NTAs without an actual hearing date scheduled.
• Always check the case status on the EOIR Automated Case Information System (EOIR Case Status Online) or by calling 1-800-898-7180.

If an immigration judge orders removal (deportation), several things can happen depending on the individual’s circumstances. Here’s what typically follows:

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1. Immediate vs. Delayed Removal

• If the person is detained, ICE may deport them within days or weeks.
• If the person is not detained, ICE will issue a Bag and Baggage Letter (Form I-166), instructing them to report for deportation on a specific date.

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2. Options After a Removal Order

(a) Appeal the Decision (Stay in the U.S. Temporarily)

• The individual has 30 days to appeal to the Board of Immigration Appeals (BIA).
• If the BIA denies the appeal, they may further appeal to:
  • A federal circuit court
  • The U.S. Supreme Court (in rare cases)
• Filing an appeal can delay deportation until a final ruling.

(b) Motion to Reopen or Reconsider

• If new evidence emerges, or there was a legal mistake in the case, the person can file a Motion to Reopen or Motion to Reconsider.
• This can sometimes stop or delay deportation.

(c) Request for a Stay of Removal

• The individual can apply for a stay of removal from ICE or the court, temporarily stopping deportation while other legal options are pursued.

(d) Voluntary Departure

• If granted, the person can leave the U.S. on their own within 60 to 120 days without an official deportation record, which may help with future re-entry.

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3. What Happens If the Person Does Not Appeal or Leave?

• ICE Enforces the Removal Order:
  • If the person does not leave, ICE may arrest and physically deport them.
  • Re-entry bans apply: A deported person may be barred from returning to the U.S. for 5, 10, or even 20 years (or permanently in some cases).
• Risk of Criminal Charges:
  • If the person re-enters illegally after removal, they can be charged with a felony and face prison time.

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4. Special Situations

• If the home country refuses to take them back:
  • Some countries (e.g., Cuba, certain African or Asian countries) may not accept deportees, causing delays or indefinite stays under ICE supervision.
• If the person fears persecution upon return:
  • They can apply for withholding of removal or Convention Against Torture (CAT) relief to stop deportation.

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The time between the Master Calendar Hearing (MCH) and the Merits Hearing (final hearing) varies depending on several factors, primarily court backlog, case priority, and location. However, here’s a general timeline:

Typical Wait Time:

• Non-Detained Cases:
  • The Merits Hearing is usually scheduled 6 months to 2 years after the MCH.
  • In courts with high backlogs (e.g., New York, Los Angeles, Houston), it can take 3+ years.
• Detained Cases:
  • Detained individuals get faster processing, often having their Merits Hearing within a few weeks to a few months after the MCH.
• Expedited Cases (e.g., Asylum, Credible Fear Review):
  • Some cases are prioritized (e.g., “rocket docket” for recent border arrivals), and a Merits Hearing may be scheduled within a few months.

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Factors Affecting the Timeline:

• Immigration Court Backlog: Some courts have thousands of pending cases, leading to long delays.
• Case Complexity: Simple cases (e.g., voluntary departure) move faster, while complex asylum or cancellation of removal cases take longer.
• Attorney & Government Scheduling Conflicts: The court considers availability when setting a hearing date.
• COVID-19 & Administrative Delays: Some cases are still delayed due to past pandemic-related backlogs.

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Checking Case Status

• You can check hearing dates through the EOIR Automated Case Information System:
  • Online: EOIR Case Status
  • Phone: Call 1-800-898-7180 and enter the A-Number (Alien Registration Number).

The Merits Hearing (also called the Individual Hearing) can happen in one day or over multiple court sessions, depending on the complexity of the case and the immigration court’s schedule.

1. Simple Cases – One Day Hearing

• Some cases are straightforward and can be completed in a single hearing, typically lasting 1 to 3 hours.
• Examples:
  • Voluntary departure requests.
  • Cases with minimal evidence and few witnesses.
  • Cases where the individual has clear eligibility for relief (e.g., adjustment of status).

2. Complex Cases – Multiple Court Dates

• If the case is complicated or involves a lot of evidence, the judge may split the hearing into two or more sessions, sometimes weeks or months apart.
• This happens when:
  • There are multiple witnesses (e.g., expert witnesses, family members).
  • The case involves asylum, cancellation of removal, or waivers, which require extensive testimony and legal arguments.
  • The court is overloaded with cases, and the judge can only schedule short hearings.

3. Partial Hearings & Rescheduling

• Sometimes, a judge starts the Merits Hearing but doesn’t finish due to time constraints.
• In that case, they schedule a continuation hearing on a later date.
• Rescheduling can lead to delays of several months to over a year, depending on the court backlog.

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Final Decision Timing

• In some cases, the judge makes an immediate decision at the end of the Merits Hearing.
• In complex cases, the judge may issue a written decision weeks or months later.

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Bottom Line:

• Simple cases = 1-day hearing.
• Complicated cases = Multiple hearings over months or even years.
• Judge’s workload can also cause delays.

A person’s stay in the U.S. is generally considered authorized while they are waiting for the completion of their Merits Hearing, but with important distinctions:

1. Not Considered “Unlawful Presence” for Certain Immigration Consequences

• While removal proceedings are ongoing, the person is not accruing “unlawful presence” for purposes of 3-year, 10-year, or permanent bars under INA § 212(a)(9)(B).
• This means that, even if their visa expired, they won’t be automatically penalized for unlawful presence as long as their case is pending.

2. No Lawful Immigration Status

• However, being in removal proceedings does not grant the person lawful immigration status (such as a visa or green card).
• They remain in a temporary, authorized period of stay, but they cannot work legally unless they obtain a work permit (EAD).

3. Can Apply for Work Authorization in Some Cases

• Certain individuals in removal proceedings can apply for an Employment Authorization Document (EAD):
  • Asylum Applicants (after 180 days from filing Form I-589).
  • Cancellation of Removal Applicants (if eligible).
  • Certain other humanitarian relief applicants.

4. Risk of ICE Detention

• Even though the person is waiting for their hearing, ICE can detain them if they violate conditions of release (e.g., criminal issues, failure to check in with ICE, flight risk).

5. Travel Restrictions

• While awaiting the hearing, the person cannot leave the U.S. and re-enter.
• Leaving is considered self-deportation, and they may face re-entry bans.

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Summary

✅ Not considered “unlawfully present” for bars to reentry.
❌ Does NOT have lawful immigration status.
🚫 Cannot work unless eligible for a work permit.
🛑 Cannot leave the U.S. and return.

For individuals in removal proceedings (including those going through a Merits Hearing) who qualify for work authorization (EAD – Employment Authorization Document), the validity of their work permit depends on their specific eligibility category. Here’s a breakdown:

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1. Asylum Applicants (Pending I-589)

• If the person has applied for asylum and is eligible for a work permit, the EAD is issued for up to 2 years.
• Work authorization continues to be valid as long as the asylum case is pending, including:
  • While waiting for the Merits Hearing.
  • If the case is on appeal after an asylum denial.

Renewal:

• The work permit can be renewed every 2 years while the case is pending.

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2. Cancellation of Removal Applicants (EOIR-Based Work Permit)

• If a person is applying for Cancellation of Removal (42A for LPRs or 42B for non-LPRs), they may qualify for a work permit while their case is pending.
• The EAD is typically valid for 1 year.
• If their case is denied and there is no appeal, work authorization expires.

Renewal:

• Can be renewed every year while proceedings continue.

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3. Other Forms of Relief (e.g., Adjustment of Status in Court, VAWA, U/T Visa Applicants)

• Some individuals in removal proceedings may be eligible for an EAD based on another pending application, such as:
  • I-485 (Green Card Application) in Immigration Court
  • VAWA (Violence Against Women Act)
  • U or T Visa Applicants
• In these cases, EAD validity can range from 1 to 2 years, depending on the category.

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4. What Happens If the Case Is Denied?

• If the judge denies the case and no appeal is filed, the EAD expires and cannot be renewed.
• If the case is appealed to the Board of Immigration Appeals (BIA), the EAD can be renewed until a final decision is made.

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5. Summary of Work Permit Validity by Category

Eligibility Category	EAD Validity	Renewal
Asylum Applicant	Up to 2 years	Every 2 years while pending
Cancellation of Removal Applicant	1 year	Every year while pending
I-485 Pending in Court	Up to 2 years	Until case is decided
VAWA, U, or T Visa Applicant	1–2 years	Until decision is made
Appeal Pending	Same as original category	Can renew while appeal is ongoing

Cancellation of Removal: Grounds & Eligibility

Cancellation of Removal is a form of relief available to certain noncitizens in removal (deportation) proceedings, allowing them to stay in the U.S. and potentially receive lawful permanent resident (green card) status. The eligibility criteria differ for lawful permanent residents (LPRs) and non-lawful permanent residents (non-LPRs).

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1. Cancellation of Removal for Lawful Permanent Residents (LPRs)

This applies to green card holders who are in removal proceedings due to criminal convictions or other violations.

Eligibility Requirements (INA § 240A(a))

A green card holder (LPR) must prove that they:

1. Have been an LPR for at least 5 years before applying.
2. Have continuously resided in the U.S. for at least 7 years after being lawfully admitted in any status.
3. Have not been convicted of an “aggravated felony” (serious crimes like drug trafficking, sexual abuse of a minor, fraud over $10,000, murder, etc.).
4. Deserve a favorable exercise of discretion by the immigration judge.

Key Considerations:

• Even if eligible, the judge may deny relief based on criminal history, moral character, or other discretionary factors.
• Certain criminal convictions can “stop the clock” on the 7-year continuous residence requirement.

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2. Cancellation of Removal for Non-Lawful Permanent Residents (Non-LPRs)

This applies to undocumented individuals or those with temporary status who are facing deportation.

Eligibility Requirements (INA § 240A(b)(1))

A non-LPR must prove that they:

1. Have been physically present in the U.S. for at least 10 years before receiving a Notice to Appear (NTA).
2. Have maintained good moral character for those 10 years.
3. Have not been convicted of certain crimes, including aggravated felonies, crimes involving moral turpitude, drug offenses (with some exceptions), and domestic violence crimes.
4. Have a U.S. citizen or LPR spouse, parent, or child who would suffer “exceptional and extremely unusual hardship” if the applicant is deported.

Key Considerations:

• The “exceptional and extremely unusual hardship” standard is very high—it must go beyond normal hardship and involve serious medical, financial, or educational consequences for a U.S. citizen/LPR family member.
• If granted, the person receives a green card (lawful permanent residency).
• The 10-year presence “clock” stops when the person receives an NTA.

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3. Special Cancellation of Removal Cases

There are additional forms of cancellation of removal for specific groups:

A. VAWA Cancellation of Removal (for Domestic Violence Survivors)

• For individuals who have been abused by a U.S. citizen or LPR spouse, parent, or child.
• The physical presence requirement is only 3 years (instead of 10).
• The hardship standard is lower than for general non-LPR applicants.

B. NACARA Cancellation of Removal

• For certain individuals from El Salvador, Guatemala, and former Soviet bloc countries who qualify under the Nicaraguan Adjustment and Central American Relief Act (NACARA).
• Has different eligibility rules than standard cancellation.

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4. What Happens If Cancellation of Removal Is Approved?

• LPR Applicants: They keep their green card and can stay in the U.S.
• Non-LPR Applicants: They receive a green card (permanent residency).
• If denied, the person can appeal to the Board of Immigration Appeals (BIA).

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Summary: Who Qualifies for Cancellation of Removal?

Category	Requirements
LPR (Green Card Holders)	✅ LPR for 5+ years ✅ Resided in U.S. for 7+ years ❌ No aggravated felonies ✅ Favorable discretion
Non-LPR (Undocumented / Temporary Status)	✅ 10+ years of continuous U.S. presence ✅ Good moral character ✅ No serious criminal history ✅ U.S. citizen/LPR family member would suffer exceptional hardship
VAWA (Domestic Violence Survivors)	✅ 3+ years of U.S. presence ✅ Abused by U.S. citizen/LPR relative ✅ Good moral character ✅ Lower hardship standard
NACARA (Certain Central Americans & Soviets)	✅ Special eligibility rules for NACARA applicants

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Timeline for Board of Immigration Appeals (BIA) Decision on a Removal Appeal

If you appeal a removal order to the Board of Immigration Appeals (BIA), the time it takes for the BIA to issue a decision can vary widely depending on several factors.

General Timeframe:

• Standard Appeal: 6 months to 2 years (most cases).
• Detained Cases: A few weeks to a few months (usually expedited).
• Complex or Backlogged Cases: More than 2 years in some instances.

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Factors Affecting the BIA’s Processing Time:

1. Case Complexity
   • Simple cases (e.g., clear legal errors) are resolved faster.
   • Complex cases (e.g., asylum, criminal matters, multiple legal arguments) take longer.
2. Court Backlog
   • The BIA has thousands of cases pending at any time.
   • Some cases sit in a queue for months before review.
3. Whether the Case Is Expedited
   • Detained individuals get faster processing (often within 3-6 months).
   • Non-detained individuals may wait 12-24 months or longer.
4. Submission of Legal Briefs
   • If both sides submit briefs on time, the case moves faster.
   • If the BIA grants an extension, the process is delayed.
5. Whether the BIA Holds Oral Arguments
   • Most cases are decided on paper, but in rare cases, the BIA schedules oral arguments, which adds more time.

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Checking BIA Case Status

• Online: Use the EOIR Case Status System:
  • BIA Case Status Online
• Phone: Call 1-800-898-7180 (Enter your A-Number to check case status).

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What Happens After a BIA Decision?

1. If the BIA Overturns the Removal Order
   • The case may be sent back to the immigration judge for further hearings.
   • In some cases, the person may win relief and stay in the U.S.
2. If the BIA Upholds the Removal Order
   • The person can be deported unless they file a further appeal.
   • Next appeal options:
     • Petition for Review in the Federal Circuit Court of Appeals (within 30 days).
     • If denied, appeal to the U.S. Supreme Court (rare cases).
3. If the BIA Dismisses the Case Without a Decision
   • The person may still request reconsideration or reopening in certain cases.

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Bottom Line:

• Detained cases: 3-6 months.
• Non-detained cases: 6 months to 2+ years.
• Backlogs & complexity affect the timeline.

What Is a Person’s Status While Appealing a Removal Order with the BIA?

When a person appeals a removal order to the Board of Immigration Appeals (BIA), their legal status remains in a gray area—they are not lawfully present, but they are also not subject to immediate removal until the BIA makes a decision.

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Key Aspects of a Person’s Status During a BIA Appeal:

1. Removal Is Temporarily Paused (Automatic Stay for Detained Cases)
   • If the person is detained, the appeal automatically pauses deportation while the BIA reviews the case.
   • If not detained, there is no automatic protection from removal—they may need to file a stay of removal with ICE to prevent deportation.
2. Not Considered “Unlawfully Present” for Bars to Reentry
   • During the BIA appeal process, the person does NOT accrue unlawful presence for purposes of 3-year, 10-year, or permanent reentry bars.
   • If the BIA denies the appeal, unlawful presence starts accruing the day after the denial.
3. No Lawful Immigration Status
   • The person does not have lawful status (e.g., visa, green card).
   • They are not authorized to work unless they already have an Employment Authorization Document (EAD) through a pending asylum or other eligible application.
4. Can Apply for a Stay of Removal (If Non-Detained)
   • Since non-detained individuals do not automatically get a stay of removal, they must file Form I-246, Application for a Stay of Removal, with ICE to prevent deportation while waiting for the BIA’s decision.
5. Work Authorization During the Appeal
   • Work authorization continues if the person already had an EAD based on a pending asylum application or another valid category.
   • If the BIA denies the appeal, the EAD expires and cannot be renewed unless another appeal is filed (e.g., to a Federal Circuit Court).

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What Happens If the BIA Denies the Appeal?

• If the BIA affirms the removal order, the person is immediately removable unless they:
  1. File a petition for review in the Federal Circuit Court of Appeals within 30 days.
  2. Request a stay of removal from the court or ICE to prevent deportation.
  3. File a Motion to Reopen or Reconsider the BIA decision.

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Summary of Status While Appealing to the BIA

Status Factor	What Happens?
Deportation	Paused if detained (automatic stay); non-detained must request a stay.
Unlawful Presence	Does not accrue during the appeal.
Legal Immigration Status	No lawful status, just a temporary stay.
Work Authorization	Only valid if already obtained before the appeal.
Travel Outside the U.S.	Leaving the U.S. is considered self-deportation, and the case is abandoned.

Can You Get Work Authorization While Your Case Is Pending with the BIA?

It depends on the person’s original eligibility for work authorization. Simply having an appeal pending with the Board of Immigration Appeals (BIA) does not automatically grant work authorization. However, work permits can continue or be renewed in certain situations.

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Who Can Have or Renew Work Authorization During a BIA Appeal?

1. Asylum Applicants (Form I-589)

✅ Eligible for work authorization while the appeal is pending if:

• The person filed for asylum and already received an Employment Authorization Document (EAD) before the appeal.
• The asylum application is still pending with EOIR (immigration court) or is under BIA review.
• EADs based on asylum are typically valid for up to 2 years and can be renewed.

🔄 Renewal:

• If the asylum case is pending at the BIA, the applicant can renew their work permit using Category (c)(8) on Form I-765.

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2. Cancellation of Removal Applicants (EOIR Work Permit)

✅ Eligible for work authorization while the case is on appeal if:

• The person previously received a work permit while their Cancellation of Removal (42A or 42B) was pending in immigration court.
• The BIA appeal is based on that cancellation case.

🔄 Renewal:

• Work permits for cancellation applicants are usually issued for 1 year and must be renewed annually.

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3. Adjustment of Status (I-485 Pending in Court)

✅ Eligible for work authorization if:

• The person filed for a green card (Form I-485) as part of their removal defense.
• The I-485 is still pending during the BIA appeal.

🔄 Renewal:

• Work permits under Adjustment of Status (AOS) cases are typically valid for up to 2 years and can be renewed.

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Who CANNOT Get Work Authorization During a BIA Appeal?

❌ Those who never had a work permit before

• If the person did not already qualify for an EAD before appealing, they cannot apply for a new one just because of the appeal.

❌ Those with a final removal order

• If the BIA denies the case and there is no further appeal, the work permit expires and cannot be renewed.

❌ People with no pending relief applications

• If a person does not have a pending asylum, green card, or cancellation case, they cannot get work authorization.

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Key Takeaways

Situation	Can Get/Renew Work Permit?
Asylum case pending (I-589)	✅ Yes, can renew
Cancellation of Removal (42A/42B) pending	✅ Yes, can renew
Adjustment of Status (I-485) pending	✅ Yes, can renew
Never had a work permit before	❌ No
Final BIA denial with no further appeal	❌ No

About the Author

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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