Removal proceedings after a plea
A conviction reaches immigration court as a charge on a Notice to Appear: that the conviction is a crime involving moral turpitude, an aggravated felony, a drug offense. That is a legal conclusion, not a fact, and it is tested under the categorical approach against the statute and the record. Do not concede it. For a person who was admitted, the government has to prove it by clear and convincing evidence. This page is what to expect, what not to say, and the three deadlines that decide what is still possible. The court side of the case lives on immigrationtrial.com.
Current as of October 2026. We re-check this page regularly and after any rule change.
This site is about the conviction. The immigration court case is the subject of immigrationtrial.com, page by page, and the cards at the bottom of this page go there. What belongs here is the part of the court case that turns on the plea: what the Notice to Appear says about the conviction, who has to prove it, what a conviction does to detention, how the categorical approach defends against the charge, and the three deadlines that decide whether a vacatur or a modification can still be used. It is the third of the questions on the after a plea page, and it assumes the first two have been asked.
What to expect
Removal proceedings are conducted under INA 240 before an immigration judge. The case begins with a Notice to Appear, which lists factual allegations (you are not a citizen, you were admitted on a date in a status, you were convicted on a date of an offense) and then a charge: that because of that conviction you are deportable under a subsection of INA 237(a)(2), or inadmissible under a subsection of 212(a)(2). DHS supports the charge with the criminal court's records of the conviction. The record of conviction page lists which documents those are and which ones the judge is allowed to read.
At the first hearing you will be asked to admit or deny the allegations and to concede or contest the charge. The allegations are facts. The charge is a legal conclusion about what the conviction is, and it can be wrong. Do not concede it. Admitting that you were convicted on a date under a statute is not the same as admitting that the conviction is an aggravated felony, and the difference is the whole defense described on this page.
Who has to prove what
| Question | Who bears the burden | Standard | Authority |
|---|---|---|---|
| Is a person who was admitted deportable? | DHS | Clear and convincing evidence | INA 240(c)(3)(A); 8 C.F.R. 1240.8(a); Woodby v. INS, 385 U.S. 276 (1966) |
| Is an applicant for admission admissible? | The applicant | Clearly and beyond doubt entitled to be admitted | INA 240(c)(2); 8 C.F.R. 1240.8(b)-(c) |
| Is the applicant eligible for relief? | The applicant | Must establish eligibility and disprove apparent mandatory-denial grounds by a preponderance | 8 C.F.R. 1240.8(d) |
| Does a conviction bar relief? | The applicant | Must show the conviction is not disqualifying; an inconclusive record loses | Pereida v. Wilkinson, 592 U.S. 224 (2021) |
The same inconclusive record cuts both ways. On the charge, for an admitted person, a record that does not show which part of a divisible statute you pleaded to means DHS has not carried its burden. On an application for relief, under Pereida, the same record means you have not carried yours. Whether you are defending against the charge or applying for relief decides who the gap in the record hurts, and which of the two positions you are in depends on your status. The deportability versus inadmissibility page sorts that out.
Detention
Under INA 236(c)(1), detention without a bond hearing before the immigration judge is mandatory for a person who is (A) inadmissible under 212(a)(2); (B) deportable under 237(a)(2)(A)(ii), (A)(iii), (B), (C) or (D), which is two CIMTs, an aggravated felony, a drug offense, a firearms offense, or certain security offenses; (C) deportable under 237(a)(2)(A)(i) for a single CIMT with a sentence of at least one year; or (D) deportable on terrorism grounds. The Laken Riley Act, Pub. L. 119-1 (Jan. 29, 2025), added a category at 236(c)(1)(E) for a person inadmissible under 212(a)(6)(A), (6)(C) or (7) who is charged with, arrested for, convicted of, or admits committing theft, burglary, larceny, shoplifting, assault of a law enforcement officer, or a crime resulting in death or serious bodily injury. A charge is enough under that provision; a conviction is not required.
Under Nielsen v. Preap, 586 U.S. 392 (2019), mandatory detention does not require that ICE take custody immediately when you are released from criminal custody. Under Jennings v. Rodriguez, 583 U.S. 281 (2018), there is no implied right to a bond hearing after six months. Where bond is available, the immigration judge weighs danger to the community and flight risk under Matter of Guerra, 24 I&N Dec. 37 (BIA 2006), and the criminal history weighs on both.
Which of these applies to your conviction is worked out on the mandatory detention after a plea page. Bond hearings, habeas and everything else about custody are the subject of our detention site, icebail.com, which that page links to. This page stops at the conviction.
The categorical approach is the defense
The immigration judge does not ask what you did. The judge asks what the statute you were convicted under requires. Under Moncrieffe v. Holder, 569 U.S. 184 (2013), Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 579 U.S. 500 (2016), the elements of the offense of conviction are compared to the generic federal definition, the least serious conduct the statute criminalizes controls, and the record of conviction may be consulted only where the statute is divisible, meaning it lists alternative elements rather than alternative means. The categorical approach page walks through the method.
For a conviction that already exists, that method produces three defenses, and they are the same three that shaped the plea in the first place.
The statute is broader than the federal definition
If the least serious conduct the statute punishes falls outside the generic offense (a theft statute that reaches temporary takings, a drug statute that reaches a substance not on the federal schedules, an assault statute satisfied by offensive touching), the conviction does not categorically match and the charge fails, whatever you actually did.
The statute is divisible and the record is inconclusive
If the statute lists alternative elements and the plea, the judgment and the charging document do not show which one you were convicted under, DHS cannot carry its burden on the charge. The same gap hurts you on an application for relief under Pereida.
The threshold is not in the record
Where the ground turns on a number, the sentence for the aggravated felony entries at INA 101(a)(43)(F), (G), (P), (R) and (S), or the loss exceeding $10,000 (a statutory threshold) under (M)(i), which under Nijhawan v. Holder, 557 U.S. 29 (2009), is decided from the record and must be tied to the count of conviction, the record has to establish it.
None of this requires the conviction to be vacated. It is an argument about what the conviction is, made from the statute and the record as they stand. Whether it is available depends on the statute and the circuit, which is why a list of statutes that do or do not match would mislead you. The analysis is done conviction by conviction, and the plea tool shows where the answer for a category depends on it.
The three deadlines
Thirty days, ninety days, and the motion that has no fixed clock
30 calendar days to appeal an immigration judge's decision to the Board of Immigration Appeals. A rule published in 2026 that would have cut the period to ten days, at 8 C.F.R. 1003.38(b)(1), was vacated on March 8, 2026 in Amica Center for Immigrant Rights v. EOIR and never took effect. The deadline is thirty days.
90 days after the final administrative order to file a motion to reopen, under INA 240(c)(7) and 8 C.F.R. 1003.23(b)(4)(i), and one motion, counted across the immigration judge and the Board under Matter of M-M-L-J-, 29 I&N Dec. 843 (BIA 2026). A vacatur or a sentence modification that is to be used after a removal order has to exist before this motion is filed. The criminal motion that will produce it has to be started with that in mind.
A motion to terminate when the conviction fails, filed while the case is pending. If the criminal court vacates the conviction for a defect, or the categorical analysis shows it does not match the charge, the charge has no support and DHS cannot carry its burden for an admitted person. There is no fixed deadline for the motion, but the case does not wait for it: a continuance to finish the criminal motion requires good cause under 8 C.F.R. 1003.29, and under Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018), the judge weighs how likely the criminal court is to grant relief and whether it would change the outcome.
Court review after a criminal ground
If the immigration judge and the Board find that the conviction fits the charge, INA 242(a)(2)(C) limits review in the court of appeals of a final order against a person removable for most criminal grounds, and 242(a)(2)(B) limits review of discretionary relief. The carve-out in 242(a)(2)(D) preserves review of constitutional claims and questions of law, and under Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), applying a legal standard to established facts is a question of law. Whether a conviction is a CIMT or an aggravated felony under the categorical approach is a question of law, so the argument on this page survives into the court of appeals. Under Nasrallah v. Barr, 590 U.S. 573 (2020), an order denying protection under the Convention Against Torture is reviewable notwithstanding the criminal-ground bar. How the petition for review is filed and on what deadline is a court-side question. Ask us.
Removal proceedings from the Notice to Appear to the final order: the master calendar, pleadings, the individual hearing, and the appeal.
Removal proceedings →
immigrationtrial.comHow a criminal charge is contested in court: the burden, the record of conviction, and what an inconclusive record means under Pereida.
Criminal convictions and removal →
immigrationtrial.comDefending a removal case from detention: mandatory custody, the accelerated calendar, and how the criminal motion is run while the client is held.
Detained removal defense →
Common questions
The Notice to Appear says my conviction is an aggravated felony. Is that decided?
No. The charge is the government's legal conclusion, and the immigration judge decides whether it is right under the categorical approach: the elements of the offense you were convicted of, compared to the federal definition, looking at the least serious conduct the statute punishes. A statute that is broader than the federal definition, or a record that does not show which part of a divisible statute you pleaded to, can defeat the charge. Admitting the conviction is not the same as admitting the charge, and the charge should not be conceded.
Who has to prove what?
For a person who was admitted, DHS must prove deportability by clear and convincing evidence under INA 240(c)(3)(A). For an applicant for admission, the applicant must show clearly and beyond doubt that they are entitled to be admitted. For any application for relief, the applicant bears the burden, and under Pereida v. Wilkinson an applicant who cannot show from the record that a conviction is not disqualifying loses.
Will I be detained?
It depends on the ground. Under INA 236(c)(1), detention without a bond hearing before the immigration judge is mandatory for a person inadmissible under the criminal grounds of 212(a)(2), deportable for two CIMTs, an aggravated felony, a drug offense, a firearms offense, or a single CIMT with a sentence of at least one year, and, after the Laken Riley Act, for certain people charged with or convicted of theft, burglary, shoplifting and related offenses who are inadmissible for entering without inspection or fraud. Under Nielsen v. Preap it does not matter that ICE did not take custody at release. The mandatory detention page covers it, and bond is handled on icebail.com.
How long do I have to appeal?
Thirty calendar days to appeal an immigration judge's decision to the Board of Immigration Appeals. A rule published in 2026 that would have cut that to ten days was vacated on March 8, 2026 and never took effect. After a final order, a motion to reopen is generally due within 90 days, and you get one, counted across the judge and the Board.
Tell us about the charge before you take the plea. Not after.
You get a free conversation with an immigration attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will read the charge against the immigration statute, tell you what the offered plea does to your status and to every form of relief, and tell you what to ask your criminal lawyer to negotiate instead. If the plea has already been entered, we will tell you what can still be done.