If the Department of Homeland Security has filed a Form I-261 in your removal case, the way to respond is at your next hearing: the immigration judge will read the new factual allegations and charges of removability aloud and ask you to plead to each one. You can admit, deny, or ask for a continuance before pleading. Knowing how to respond to a Form I-261 comes down to three things — understanding what the form is allowed to do, using your right to time and counsel before you answer, and spotting the situations where the form itself is improper.
What the Form Changes About Your Case
Form I-261, “Additional Charges of Inadmissibility/Deportability,” is what DHS files when it wants to add or swap charges of removability, or add or change factual allegations, in a case that is already in front of an immigration judge. The authority comes from 8 CFR § 1003.30, which lets DHS lodge additional or substituted charges in writing at any point during proceedings.1eCFR. 8 CFR 1003.30 – Additional Charges in Deportation or Removal Hearings
The new charges usually cite specific sections of the Immigration and Nationality Act — commonly INA § 212 for inadmissibility or INA § 237 for deportability — and the factual allegations tend to cover things like citizenship, manner of entry, immigration history, or criminal convictions.2U.S. Department of Justice. Matter of Luis Aguilar Hernandez, 28 I&N Dec 774 (BIA 2024) Because DHS can file this form at any stage, the amendments often reflect information the government developed after the original Notice to Appear — a newly surfaced conviction, a different theory of removability, or a prior removal order that has come to light.
Your Three Options at the Hearing
After the judge reads the amended charges on the record, you will be asked to plead to each factual allegation and each charge. This is the same pleading process used for the original NTA.3eCFR. 8 CFR 1240.10 – Hearing
- Admit. You agree the allegation is true or that the charge applies. If you admit everything and concede removability, the judge can find removability established on your admissions alone, without DHS putting on evidence.3eCFR. 8 CFR 1240.10 – Hearing
- Deny. You dispute the allegation or contest the charge, and DHS then has to prove it.
- Ask for time. You tell the judge you need a continuance before entering any plea. The regulation expressly contemplates this.
Admissions are hard to walk back. If you are not sure whether a charge applies, or whether admitting a fact would close off a form of relief, denying and forcing DHS to prove its case is the safer default until you have advice.
Ask for a Continuance Before You Plead
Getting hit with new charges mid-case is a legitimate reason to slow the case down. Under 8 CFR § 1003.30, the judge may grant “a reasonable continuance to respond to the additional factual allegations and charges.”1eCFR. 8 CFR 1003.30 – Additional Charges in Deportation or Removal Hearings The general continuance rule at 8 CFR § 1003.29 also allows continuances for “good cause shown.”4eCFR. 8 CFR 1003.29 – Continuances
Common reasons the judge will hear out: you need to find an attorney, your current attorney needs time to investigate the new charges, or you need to gather documents to respond. If you make the request in writing before the hearing, the EOIR Immigration Court Practice Manual says to include the reason, propose new dates, and attach supporting evidence where relevant. Filing a request does not excuse your appearance — show up at every scheduled hearing until the judge actually grants the motion.5Executive Office for Immigration Review. 4.10 – Other Motions
Extra Protection for Minors and Unrepresented Respondents
The judge cannot accept an admission of removability from an unrepresented respondent who is under 18, is incompetent, or is not accompanied by an attorney, legal representative, near relative, or guardian. In those situations, the judge has to hold a full hearing on the issues regardless of what the respondent says.3eCFR. 8 CFR 1240.10 – Hearing If that describes you or someone you are helping, an admission on the record should not, by itself, end the case.
Check Whether DHS Is Using the Form for Something It Cannot Do
Form I-261 is authorized to do two things: add or substitute charges of removability, and add or change factual allegations. Anything else is outside the regulation.
In Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024), DHS tried to use a Form I-261 to add the missing date and time of hearing to a defective Notice to Appear. The Board of Immigration Appeals rejected that use, holding that a hearing date and time are neither a charge of removability nor a factual allegation, so 8 CFR § 1003.30 does not authorize the form to supply them.2U.S. Department of Justice. Matter of Luis Aguilar Hernandez, 28 I&N Dec 774 (BIA 2024) The Board tied its reasoning to the Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021), which requires a proper NTA to be a single document containing all statutorily required information rather than a series of filings.6Supreme Court of the United States. Niz-Chavez v Garland, 593 US 155 (2021) The Board acknowledged there is “no clear mechanism” for DHS to fix a defective NTA short of dismissing and reissuing.
If your original NTA was missing required information and the I-261 looks like an attempt to patch that hole, you may have grounds to move to terminate proceedings. Timing is critical: courts and the BIA have generally held that this kind of objection has to be raised before pleadings are complete. Wait until after you have pleaded to the original charges and the objection may be treated as waived.
Think Through Termination Before You Push for It
Terminating proceedings is not automatically the win it sounds like. It resets the clock, and that can hurt you if you were building toward relief that requires continuous physical presence, such as the ten years needed for non-permanent-resident cancellation of removal. If you are detained, termination can prompt DHS to reassess custody. And DHS may simply issue a new NTA and start over. Weigh what you would gain against what you would lose before making the challenge your primary strategy.
Get a Lawyer Before You Answer
Removal proceedings are adversarial, and new charges usually mean the government has developed a stronger or different theory of your case. You have the right to be represented, though the government will not provide or pay for counsel. An immigration attorney can evaluate whether the new charges actually apply to you, identify relief the amendments might open or close, and flag procedural defects — including the kind of NTA problem the I-261 cannot cure. If cost is an issue, nonprofit legal organizations and law school immigration clinics handle removal defense, and the immigration court maintains a list of free or low-cost providers in the area. Getting advice before you plead is far more effective than trying to undo an admission afterward.