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Removal Proceedings
Removal Proceedings Generally
Removal proceedings are highly complex, and the discussion that follows can hardly be exhaustive of the matter.
Until recently, "exclusion proceedings applied to aliens seeking admission upon arrival at the U.S. border, and "deportation proceedings" applied to aliens who had "entered" the U.S. (Legally or illegally) and whom USCIS sought to deport. In 1996 congress for the most part combined exclusion and deportation proceedings into one type of proceeding, called "removal proceedings."
This area of the law is further complicated in that some aliens who arrive at, or even have physically entered, the U.S. are not entitled to normal removal proceedings at all: those who have made misrepresentations in immigration matters, who are undocumented, or who appear at the border as stowaways, crewmen, Visa Waiver Program participants, and suspected terrorists, are subject to "expedited removal" or other immediate removal under inadmissability grounds without a hearing. Other aliens associated with criminal activity receive various levels of streamlined administrative or judicial review.
Additionally, differences are prevalent between the process applicable to aliens seeking admission and those already admitted. Most importantly, aliens seeking admission bear a heavy and continuing burden to show that they are not subject to more encompassing grounds of inadmissability, while those already admitted may require the USCIS to show by clear and convincing evidence that they are subject to more limited "deporatbility grounds." Another important distinction is "arriving aliens" are not entitled to a hearing regarding bond. In other words an "arriving alien" may be detained by the USCIS without the ability to go before an immigration judge to determine if he/she is eligible for bond while he/she awaits his/her removal proceedings.
Thus, while congress may have combined the two proceedings under one title, called removal proceedings, aliens deemed inadmissable versus those deemed deportable are and should be treated independently.
Commencement of Removal Proceedings
Removal proceedings commence when written notice, also referred to as a "notice to appear," will be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien's counsel of record, if any) stating:
- The nature of the proceedings against the alien;
- The legal authority under which the proceedings are conducted;
- The acts or conduct alleged to be in violation of law;
- The charges against the alien and the statutory provisions alleged to have been violated;
- The time and place at which the proceedings will be held, and the consequences of the failure, except under exceptional circumstances, to appear at such proceedings;
- The facts that the alien may be represented by counsel, and that the alien will be provided a period of time to secure counsel, as well as a current list of counsel; and
- The requirement that the alien must immediately provide, or have provided, the Attorney General with a written record of an address and telephone number, if any, at which the alien may be contacted respecting removal proceedings (as well as a written record of any change of address or telephone number), and the consequences of failing to do so.
Additionally, the USCIS must include, in a notice to appear for removal proceedings, administrative information to the Immigration Court as to (1) the alien's names and any known aliases, (2) the alien's address, (3) the alien's registration number, with any lead alien registration number with which the alien is associated, (4) the alien's alleged nationality and citizenship, and (5) the language (s) that the alien understands.
If the alien's address is not provided on the Order to Show Cause or Notice to Appear, or if the address on the Order to Show Cause or Notice to Appear is incorrect, the alien must provide to the Immigration Court where the charging document has been filed, within five days of service of that document, a written notice of an address and telephone number at which the alien can be contacted. Further, within five days of any change of address, the alien must provide written notice of the change of address on Form EOIR-33 to the Immigration Court where the charging document has been filed, or if venue has been changed, to the Immigration Court to which venue has been changed.
Any immigration officer performing an inspection of an arriving alien at a port of entry may issue a notice to appear to such an alien. In addition, the following officers, or officers acting in such capacity, may issue a notice to appear: District Directors (except foreign); Deputy District Directors (except foreign); Assistant District Directors for Investigations;
Deputy Assistant District Directors for Investigations; Assistant District Directors for Deportation; Deputy Assistant District Directors for Deportation; Assistant District Directors for examinations; Deputy Assistant District Directors for Examinations; Officers in Charge (except foreign); Assistant officers in charge (except foreign); Chief patrol agents; Deputy chief patrol agents; Associate Chief Patrol Agents; Assistant Chief Patrol Agents; Patrol Agents in Charge; the Assistant Commissioner of Investigations; Service center directors; Deputy center directors; assistant center directors for examinations; supervisory asylum officers; Institutional Hearing Program directors; Institutional Hearing Program Deputy Directors.
Service by mail is sufficient if there is proof of attempted delivery to the last address provided by the alien in accordance with the above-mentioned requirements. Further, the Attorney General is required to create a system to record and preserve on a timely basis notices of addresses and telephone numbers (and changes) provided under the above provision.
Custody of Aliens in Removal Proceedings
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Pending such decision, the Attorney General (1) may continue to detain the arrested alien; and (2) may release the alien on (a) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or (b) conditional parole, except as otherwise provided in statutory provisions governing the release of detained criminal aliens. In most instances criminal aliens are subject to mandatory detention as seen in the following paragraph taken from the Immigration and Nationality Act.
The Attorney General is required to take into custody any alien who (1) is inadmissible by reason of having committed any offense covered in provisions governing inadmissibility on criminal and related grounds, (2) is deportable by reason of having committed any offense covered in provisions governing deportation for criminal offenses, except crimes of moral turpitude, (3) is deportable provisions governing deportation for crimes of moral turpitude, on the basis of an offense for which the alien has been sentence to a term of imprisonment of at least one year, or (4) is inadmissible or deportable because of terrorist activities when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
Adjudication of Removal Proceedings
Once you find yourself in removal proceedings an Immigration Judge will conduct the proceedings for deciding the inadmissibility or deportability of an alien. In a removal, the Immigration Judge has the authority to:
- Determine removability;
- Make decisions, including orders of removal;
- Determine applications under various provisions;
- Order withholding of removal; and
- Take any other action consistent with applicable law and regulations as may be appropriate
At the conclusion of a removal proceeding, the Immigration Judge will decide whether an alien is removable from the United States. The determination of the Immigration Judge will be based only on the evidence produced at the hearing. A decision made by an Immigration Judge may be oral or written. The decision of the Immigration Judge must include a finding as to inadmissibility or deportability. There is no requirement that a formal enumeration of findings be made. However, the decision must contain reasons for granting or denying the request and must submit a final order regarding the proceedings.
The order of the Immigration Judge must specifically dictate the alien's removal, or the termination of the proceedings, or such other disposition of the case as may be appropriate. When removal is ordered, the Immigration Judge must specify the country, or countries in the alternate, to which respondent's removal shall be directed. The Immigration Judge is authorized to issue orders in the alternative or in combination as he or she may deem necessary.
Any alien who without reasonable cause who fails or refuses to attend or remain in attendance at a proceeding to determine the alien's inadmissibility or deportability and who seeks admission to the United States within five years of such alien's subsequent departure or removal is inadmissible.
Unless otherwise specified in the Immigration and Nationality Act, a removal proceeding is the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States.
Asylum allows a person refuge in the United the United States based on persecution, by either government or by an independent force where the government is unable or unwilling to protect the asylum applicant without protection by the government, to seek refuge within the United States. This is not only for protection against political opinion but also for various other grounds of persecution
Asylum is available to eligible people who are already in the United States and are unable or unwilling to return their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. An asylum applicant must apply for asylum with the Immigration Service upon arrival at the United States border or within one year after arrival in the United States. If the foreign national is already in the United States and has been put into Deportation (now called Removal proceedings) the foreign national may claim asylum as a relief to removal if eligible for an asylum claim. Eligibility is based on information that is provided on the asylum application and during an interview with an Asylum Officer or Immigration Judge.
An asylum applicant may only apply for employment authorization 150 days after the USCIS has received the completed asylum application.
An approved asylum claim allows the aslyee to live and work in the United States. The asylee is also able to apply for permanent resident status one year after the asylum claim is approved. The asylee’s spouse and any unmarried children under the age of 21 may be included in the asylum application.
If the asylum applicant does not qualify for asylum, but fears being tortured upon returning home, the asylum applicant may apply for relief under the Convention Against Torture.
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