What You Need to Know

An asylum referral can start an INA 240 removal case when a charging document goes with it. An INA 240 removal case is the court process where an immigration judge decides whether a person may be removed from the United States. This page explains how these cases begin, what the first hearing involves, and how to read the papers you received. Adriana Gomez is the responsible lawyer for this page.

What a Removal Case Under INA Section 240 Is

A removal case under INA Section 240 is the formal process for deciding whether a person can be removed from the United States. Under 8 U.S.C. § 1229a, unless the immigration law says otherwise, a removal proceeding is the sole and exclusive procedure for deciding whether someone may be admitted or, if already admitted, removed. The detailed rules appear in Title 8 of the Code of Federal Regulations.

The case runs in immigration court, not in a USCIS office. Government paperwork for these cases goes to the Executive Office for Immigration Review (EOIR), as 8 CFR 1003.15 explains. USCIS handles applications such as affirmative asylum. The immigration judge hears the removal case itself.

For an overview of how we handle these matters, see our removal defense services page.

How a Section 240 Case Begins: The Notice to Appear

A Section 240 case starts with a Notice to Appear, or NTA. The NTA is the charging document that lists what the government says about the person. Under 8 U.S.C. § 1229, the NTA must be given in person or, if personal service is not practicable, by mail to the person or to counsel of record.

The NTA must list the nature of the proceedings, the legal authority, the acts alleged to violate law, and the charges. It must also state the time and place of the hearing. Look for these items first: the charges, the court address, and the hearing date and time.

Address changes matter. Under 8 CFR 1003.15, within five days of any change of address, the person must give written notice on Form EOIR-33 to the immigration court where the charging document was filed or, if venue has been changed, to the immigration court to which venue has been changed. Many people lose track of this step after a move, and missed mail can cause serious problems.

Where the Case Is Heard: Immigration Court and the Immigration Judge

Immigration court is where an immigration judge hears the case and decides removability. In removal proceedings, an immigration judge decides whether the person is removable. That decision rests only on the evidence produced at the hearing.

The judge also decides requests for relief. Under 8 CFR 1240.1, the judge can rule on applications such as asylum, adjustment of status, and cancellation of removal. The judge can also certify a decision to the Board of Immigration Appeals when a case raises an unusually complex or novel question.

A person may have a lawyer at the hearing. Under 8 CFR 1240.3, the respondent may be represented by an attorney or another qualified representative.

What Happens at the First Hearing in Immigration Court

At the first hearing, the judge reads the charges and asks the person to respond. Under 8 CFR 1240.10, the judge advises the person of a reasonable opportunity to examine and object to evidence, present evidence, and cross-examine government witnesses, but the person is not entitled to examine national security information the government proffers in opposition to admission or to an application for discretionary relief. The judge also places the person under oath.

Next, the judge asks whether the person admits or denies the factual allegations and the charge of removability. If the respondent admits both, and the judge is satisfied that no issues of law or fact remain, the judge may find removability established, but the judge shall not accept an admission from an unrepresented person who is incompetent or under 18 and is not accompanied by an attorney or legal representative, a near relative, legal guardian, or friend; nor from an officer of an institution in which a respondent is an inmate or patient. That is why this answer matters.

The first hearing has a timing rule. Under 8 U.S.C. § 1229, the first hearing cannot be set earlier than 10 days after the NTA is served. The person can ask in writing for an earlier date. If more time is needed, 8 CFR 1240.6 allows a reasonable adjournment for good cause shown, but no adjournment may cause the adjudication of an asylum application to exceed 180 days in the absence of exceptional circumstances.

What an Asylum Referral From USCIS Is

An asylum referral is the step where an asylum officer sends an application to immigration court instead of granting it. Under 8 CFR 1208.14, after an asylum interview, the officer must deny, refer, or dismiss the application if the officer does not grant asylum.

Asylum itself is a form of protection. Once the case is in court, the judge can rule on the asylum application under the rules in 8 CFR 1240.1.

Does an Asylum Referral Start a Section 240 Case?

An asylum referral can lead to removal proceedings when it reaches the judge with a charging document. Under 8 CFR 1208.14, except for applicants described in paragraph (c)(4)(ii) who have not already been through proceedings under 8 CFR 235.3, for an applicant who appears to be inadmissible or deportable, the asylum officer refers the application to an immigration judge with a charging document, but where charging documents may not be issued, the application is dismissed instead. Under 8 CFR 1003.14, jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service; however, no charging document is required to be filed with the Immigration Court to commence bond proceedings pursuant to §§ 1003.19, 1236.1(d) and 1240.2(b) of this chapter.

Whether a particular referral leads to new proceedings, a new NTA, or an existing case depends on the facts. Status matters too. Under 8 CFR 1208.14(c)(3), if an applicant was paroled into the United States and the parole has not expired or been terminated, the asylum officer denies the application rather than referring it to court.

To tell the papers apart, check who issued each one. An NTA is the charging document that starts court proceedings. Compare the paper against the items 8 CFR 1003.15 requires, including the nature of the proceedings, the legal authority, the acts or conduct alleged to be in violation of law, the charges and statutory provisions, the right to counsel at no cost to the government, the court address, and the address-change notice.

What to Do Next If a Document Has Arrived

Read the document, write down the court and hearing date, and treat that date as firm. Keep every page in one folder so nothing is lost. Check the court address and the address you gave the court.

Missing a hearing has serious consequences. Under 8 CFR 1003.26, the judge shall order the person removed in absentia if the government shows by clear, unequivocal, and convincing evidence that the person is removable. The written notice of the hearing and its consequences must also have been provided to the person or their counsel of record, and the government must establish this by clear, unequivocal, and convincing evidence.

Federal law adds another limit.

Frequently Asked Questions

Talk With Adriana Gomez About Your Situation

If you received a Notice to Appear or an asylum referral letter, you may be worried about a deadline and what it means. You do not have to sort out those papers alone. Adriana Gomez and our team can review the documents in your hands and explain what the dates and charges mean for your case. Consultations are paid. You can contact our office by form, phone, or WhatsApp to set up a time to talk.