The Merits hearing is the stage in a removal proceeding at which the government and the foreign national present their substantive arguments for and against removal. It follows at least one Master Calendar hearing, which is a procedural hearing that mostly involves scheduling issues. You should be aware that even if you are technically removable from the U.S., you may have a defense to removal, such as cancellation of removal or asylum. The judge will consider both removability and any defenses at the same hearing. Sometimes, however, a foreign national will not contest removability when it is clear and instead focus on raising a defense to removal.
Prior to the Merits hearing, you must have determined the types of immigration relief that you will be seeking. You must have provided your application for relief and supporting materials to the court in advance, and the government also must have received the application. If you fail to comply with these requirements and pay the related fees, you will be found to have waived any right to immigration relief. The immigration judge will order your removal from the U.S. without proceeding to the Merits hearing.
How a Merits Hearing Unfolds
A Merits hearing is much longer than a Master Calendar hearing. Both the government and the foreign national will outline their arguments and potentially present testimony from witnesses. Each side has the right to cross-examine opposing witnesses if they choose. You should not rely on the judge to ask questions or help you make your case. In most cases, a foreign national will benefit from the assistance of an attorney who is experienced in presenting these types of arguments. If the Merits hearing is not resolved in one day, the judge will schedule a continuation at a later date, but not on the next day.
One of the ways in which an attorney may be helpful is preparing the foreign national and their witnesses to testify.
The immigration judge will start the hearing by reviewing your submissions and other documents in the record. They will give the government and the foreign national an opportunity to supplement the record or correct any errors in it. You then will be sworn in as a witness, and your attorney will ask you questions. Sometimes the judge will ask questions as well. The government attorney then will have a chance to ask you questions. Your attorney and the immigration judge might ask you more follow-up questions after the government attorney finishes. Once your testimony concludes, other witnesses will be questioned in the same manner.
After all of the witnesses have testified, the foreign national or their attorney can make a closing statement about why they are eligible for the relief that they are seeking. This statement can sum up their earlier arguments and address any weaknesses exposed by the government attorney. That attorney also will be able to make a closing statement about why they believe that the foreign national should be removed.
Decisions After Merits Hearings
If the immigration judge is ready to make a decision at the end of the hearing, they may issue their decision orally. The court then will send a written summary of the decision to the foreign national, as long as they have provided their current address to the court. On the other hand, if the judge needs more time to weigh the evidence, they can issue a written decision later. Having a written summary or written decision will be critical if you decide to appeal.
Appeals must be made in writing to the BIA within 30 days.
You have a right to appeal an adverse decision to the Board of Immigration Appeals, unless you have waived this right. Any appeal must be made in writing within 30 days of the decision. You should try to avoid waiving your right to appeal, since the BIA has been known to overturn many decisions on appeal. If the BIA denies your appeal, you may have an option to appeal that denial in federal court. The government also has a right to appeal a decision within 30 days, but this is less common.
The decision of the judge becomes final if neither side files an appeal within the deadline. It also becomes final if the foreign national waives their right to an appeal or states to the judge that they accept the decision as final, or if they leave the U.S. before filing an appeal. In some situations, a foreign national may not want to appeal an adverse decision, especially if the law is not in their favor or if they are no longer eligible for a certain type of relief. Sometimes a foreign national in detention will waive an appeal to get out of detention, although this still means that they will need to leave the U.S. soon. You should consult with your attorney about whether you should waive your right to an appeal.
Motions to Reopen or Reconsider
In unusual cases, a foreign national may find vital new evidence related to their case that was not considered by the judge before making their decision. They can ask the judge to reopen their file when this happens. If your attorney and you believe that the judge did not apply the law correctly, or if the law changes after the decision, you might be able to file a motion to reconsider. You cannot file either type of motion if you already have appealed the decision to the BIA.