DEPORTATION, EXCLUSION and REMOVAL PROCEEDINGS

241-242, of the Immigration and Nationality Act of 1952 ("Act"), Pub. L. No. 82-414, 66 Stat. 163,
8 U.S.C. 1251-1252.
Exclusion: 236, of the Act, 8 U.S.C. 1226
Removal: 239-240, 240A, 240B, 241-242 of the IIRIRA, 8 U.S.C. 1229

Copyright 1999 VIKRAM BADRINATH, P.C. All rights reserved.

[ Deportation ] [ Exclusion ] [ Removal ]

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Introduction

Generally, any foreign national (e.g., a non-citizen) who holds a nonimmigrant or immigrant visa status (e.g., "green card" holder) or who has no status at all, may have his status rescinded and be deported, excluded, or removed from the United States for differing periods of time ranging from one (1) year, twenty (20) years, to forever depending upon the underlying basis for such deportation, exclusion, or removal. Although an alien may have been granted "lawful permanent resident" status, any action inconsistent with such status may render an individual deportable from the United States. The U.S. INS is the government agency that petitions for and enforces deportation orders. Contrary to general belief, the U.S. INS generally does not have the authority to order an alien deported, excluded or removed; this doctrine does not include reinstatement of prior orders of removal under 241(a)(5) of the Act, expedited removal of arriving aliens under 235 of the Act, nor administrative, expedited removal of aggravated felons.

As a result of new immigration law changes, there are currently three (3) different proceedings to determine the deportability/excludability/inadmissibility of a foreign national from the United States. On September 30, 1996, the Congress of the United States created a new "unified" proceeding known as Removal; combining both formal Exclusion and Deportation proceedings into one. Any formal proceeding that was commenced on or before April 1, 1997 shall be continued to be conducted without regard to the new changes and shall be governed by the procedures that were in place prior to new changes in the law, with several exceptions. Hence, any alien the U.S. INS desires to be deported after April 1, 1997 may only be placed into Removal proceedings.

General Procedure

If the U.S. INS desires to have an alien removed from the United States, have his immigration status rescinded, declared inadmissible or deportable, or determine a claim for Political Asylum or Withholding of Removal/Torture Convention, the U.S. INS must serve a charging document upon an alien with certain factual allegations and immigration charges and thereafter, must file this charging document with another government agency, the Immigration Court, also known as the Executive Office for Immigration Review ("EOIR"). Immigration Judges are federal judges who conduct quasi-judicial administrative proceedings to determine the inadmissibility or deportability of a foreign national. An alien placed into formal proceedings has a right to an attorney at his own expense [because such proceedings are "civil" in nature and not "criminal," an alien does not have a right to a court-appointed attorney], a right to present any evidence on his own behalf (witness, documents, exhibits), a right to cross-examine government witnesses (agents, officers, etc.) and documents, and a right to appeal. Generally, most appeals from an Immigration Judge's decision are made directly to the Board of Immigration Appeals in Falls Church, Virginia.

NOTE: Although the end result is the same (e.g., alien returned to his home country), the differences and distinctions with regards to notice, rights, procedures, burdens of proof, evidence, relief, and consequences are strikingly different between Exclusion, Deportation, and Removal.


Deportation

Proceedings commenced prior to April 1, 1997 for deportable aliens

Deportation is the formal proceeding in which an alien's deportability from the United States is determined. If an alien is determined to be deportable from the United States, he may be deported from this country and forced to return to his last foreign departure point, deported to his home country (sometimes at government expense), or may be ordered deported and held in detention indefinitely in cases where the alien's home country will not accept a deported alien (e.g., Cuba, Vietnam, etc.). Deportation proceedings, hence, take place only for aliens who are physically present inside the United States and have been found to have committed an act that may render them deportable from this country. When an alien is found to be physically present within the borders of the United States and is determined by an Immigration officer, inspector, or Border Patrol agent to have committed an act (e.g., criminal offense, terrorist activity, inadmissible at time of entry/adjustment, false claim to U.S. citizenship, previously deported, etc.) that is inconsistent with his claimed immigration statuts, then a U.S. INS immigration officer may serve an applicant with a "Order to Show Cause" (Form I-221) for further proceedings. An alien will be scheduled for an appearance before an Immigration Judge to have his deportability determined accordingly.

Unlike exclusion proceedings, the U.S. INS must demonstrate that an alien is deportable from the United States by "clear, unequivocal, and convincing evidence." Woodby v. INS, 385 U.S. 276, 282-84 (1966). This means that the U.S. INS must allege certain factual allegations that coincide with a recongized ground of deportability in order for an Immigration Judge to sustain the specific immigration charge of deportabililty.

Deportation proceedings are generally open to the public unless specifically closed by an Immigration Judge. In addition, unlike Exclusion procedures, an alien who is subjected to formal detention by the U.S. INS may have his custody determination reviewed by an Immigration Judge, with exceptions to those who are deportable for certain specified grounds. Moreover, an alien who is denied release on bond or who wishes to challege an Immigration Judge's custody determination may appeal to the Board of Immigration Appeals for further review. Furthermore, an alien may seek judicial review in the Federal District Courts of the United States by filing a petition for writ of habeas corpus.

Review of a final order of deportation must be made within the time allowed to the Board of Immigration Appeals in Falls, Church, VA. Thereafter, an alien may appeal to a United States Court of Appeals for the appropriate judicial district and then to the United States Supreme Court. In some cases, an alien must appeal directly to a United States District Court before filing a petition for review with a regional Court of Appeals. Moreoever, recent amendments to the Immigration Laws have substantially affected an alien's ability and right to seek judicial review. These provisions are currently being litigated and are, therefore, not fully resolved and remain unclear, at best.

An alien placed into Deportation proceedings may apply for the following forms of relief: (1) Voluntary Departure; (2) Adjustment of Status; (3) Suspension of Deportation; (4) Political Asylum/Withholding of Deportation ( 243(h)); (5) Waiver of Excludability pursuant to 212(c) [although this waiver applies to exclusion applicants, courts have held that it must be offered to aliens in deportation as well]; (6) Termination [based upon legality of deportability, claim to U.S. citizenship; technical defect/violation that prejudices alien's rights].

Exclusion

Proceedings commenced before April 1, 1997 for excludable aliens

Exclusion is the formal proceeding in which an alien's admissibility to the United States is determined. If an alien is determined to be inadmissible to the United States he may be excluded from entry and forced to return to his or last foreign departure point or deported to his home country (at government expense). Exclusion proceedings, hence, take place only for aliens arriving at a Port of Entry, Airport/Sea Landing Zone, or other Entry/Departure Route to or from the United States. When an alien arrives at a port of entry to the United States, he is subject to inspection. Immigration officers/inspectors question all applicants for admission (even U.S. citizens), examine documentation, and determine whether an alien may be admitted to the United States. If during such inspection, an issue arises as to whether the alien may be permitted to enter the United States based upon his claimed status (citizen, lawful permanent resident, nonimmigrant visitor, or other status) or whether an alien although having demonstrating a claimed status may not be entitled to such status (e.g., criminal conviction, abandonment of status due to excessive absences from the U.S., terrorist activity, medical contaimination, physical/mental defect, etc.), then a U.S. INS immigration officer may serve an applicant with a "Notice to applicant for Admission Detained for Hearing" (Form I-122). Exclusion proceedings may then be formally commenced with the filing of the Form I-122 with the Immigration Court for further proceedings. An alien will be scheduled for an appearance before an Immigration Judge to have his excludability determined accordingly.

Unlike deportation proceedings, every applicant for admission must demonstrate that he is not excludable and that he is entitled to the U.S. citizenship, nonimmigrant, immigrant special immigrant, immediate relative, or refugee status claimed, as the case may be. INA 291, 8 U.S.C. 1361; Matter of Arthur, 16 I&N Dec. 558 (BIA 1978).

Exclusion proceedings are generally closed to the public. INA 236(a), 8 U.S.C. 1226(a). In addition, unlike Deportation or Removal, applicants detained for exclusion are generally not protected by the constitution with respect to custody determinations. The decision to detain or release the applicant, and under what conditions, is almost completely subject to the discretion of the U.S. INS. Opportunities for meaningful review of that discretion are extremely limited. In this regard, a District Director may "parole" an alien until his exclusion proceeding complete. A "paroled" applicant may therefore be released and be physically present in the United States but is still considered "applying for admission" and is still subject to exclusion (i.e. "parole" is not considered an admission or entry into the United States regardless of how long the applicant may remain in the United States following his "parole."). Often, an alien who is "paroled" into the United States for criminal prosecution, humanitarian reasons, medical operations, etc., pending an ultimate determination of admissibility. INA 235(b), 8 U.S.C. 1225(b).

Review of a final order of exclusion (e.g., made by the BIA, or if alien fails to file an appeal) may be done only by "habeas corpurs proceedigns and not otherwise." INS 106(b), 8 USC 1105a(b). Further, a petition to review a final order of exclusion will be dismissed by a Court of Appeals for lack of jurisdiction. Delgado-Carrera v. INS, 773 F.2d 629 (5th Cir. 1985); Castillo-Magallon et al., v. INS, 729 F.2d 1227 (9th Cir. 1984). Hence, an applicant incorrectly placed into exclusion proceedings must seek review by a petition for writ of habeas corpus.

An applicant placed into Exclusion proceedings may apply for the following forms of relief: (1) Withdrawal of the Application for Admission; (2) Adjustment of Status; (3) Political Asylum/Withholding of Deportation ( 243(h)); (4) Waiver of Excludability: (a) 211(b) Document Waiver [lawful permanent residnets], (b) 212(c) Waiver [criminal grounds of excludability], (c) 212(d)(4) Nonimmigrant Visa Waiver, (d) 212(g) Medical Waiver, (e) 212(h) Waiver [certain lesser criminal offenses], (f) 212(i) Waiver [fraud or misrepresentations], (g) 212(k) Waiver [technical invalidities of visa].

Removal

ALL Proceedings commenced after April 1, 1997

After the enactment and passage of the Illegal Imimgration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA"), Pub. L. 104-208, 110 Stat. 3009 (September 30, 1996), the aforementioned Deportation and Exclusion proceedings were combined into one unified proceeding known as "Removal". This is the formal proceeding in which an alien's deportability from the United States or inadmissibility to the United States is determined. In essence, the distinctions and disparate treatement of aliens in either deportation or exclusion proceedings, has been removed. In any event, Removal proceedings combines the determinative capacity of an Immigration Judge to adjudicate U.S. INS claims of deportability or inadmissibility pursuant to 237 and 212 of the INA, respectively. As such, removal proceedings have the dual similarity of both of the former deportation and exclusion processes.

If an alien is determined to be deportable from the United States, he may be "removed" from this country and forced to return to his last foreign departure point, "removed" to his home country (sometimes at government expense), or may be ordered "removed" and held in detention indefinitely in cases where the alien's home country will not accept a "removed" alien (e.g., Cuba, Vietnam, etc.). Removal proceedings, hence, may take place for aliens who are physically present inside the United States and have been found to have committed an act that may render them deportable from this country. When an alien is found to be physically present within the borders of the United States and is determined by an Immigration officer, inspector, or Border Patrol agent to have committed an act (e.g., criminal offense, terrorist activity, inadmissible at time of entry/adjustment, false claim to U.S. citizenship, previously deported, etc.) that is inconsistent with his claimed immigration statuts, then a U.S. INS immigration officer may serve an applicant with a "Notice to Appear" (Form I-862) for further proceedings; depending upon the ground of alleged "deportability" the alien may or may not be detained by the U.S. INS at a detention facilility. An alien will be scheduled for an appearance before an Immigration Judge to have his deportability determined accordingly.

Additionally, Removal is the formal proceeding in which an alien's admissibility to the United States is determined. If an alien is determined to be inadmissible to the United States he may be excluded from entry and forced to return to his or last foreign departure point or deported to his home country (at government expense). Due to the dual-nature of Removal proceedings, an alien may also be subject to removal under all of the grounds under 212 of the Act, if they arrive at a Port of Entry, Airport/Sea Landing Zone, or other Entry/Departure Route to or from the United States. When an alien arrives at a port of entry to the United States, he is subject to inspection. Immigration officers/inspectors question all applicants for admission (even U.S. citizens), examine documentation, and determine whether an alien may be admitted to the United States. If during such inspection, an issue arises as to whether the alien may be permitted to enter the United States based upon his claimed status (citizen, lawful permanent resident, nonimmigrant visitor, or other status) or whether an alien although having demonstrating a claimed status may not be entitled to such status (e.g., criminal conviction, abandonment of status due to excessive absences from the U.S., terrorist activity, medical contaimination, physical/mental defect, etc.), then a U.S. INS immigration officer may also serve an applicant with a "Notice to Appear" (Form I-862).

Removal proceedings whether charging deportability or inadmissibility may then be formally commenced with the filing of the Notice to Appear, Form I-862 with the Immigration Court for further proceedings. An alien will be scheduled for an appearance before an Immigration Judge to have his alleged deportability or inadmissibility determined accordingly.

Unlike exclusion proceedings, but similar to deportation proceedings, an alien in Removal proceedings charged under 237 of the Act (e.g., an alien present in the U.S.) must have the U.S. INS must demonstrate that an alien is deportable from the United States by "clear, unequivocal, and convincing evidence." Woodby v. INS, 385 U.S. 276, 282-84 (1966). This means that the U.S. INS must allege certain factual allegations that coincide with a recongized ground of deportability or in order for an Immigration Judge to sustain the specific immigration charge of deportabililty. However, an alien charged under 212 must demonstrate that he is not inadmissible to the United States (similar to former exclusion proceedings.)

Removal proceedings are generally open to the public unless specifically closed by an Immigration Judge. In addition, unlike Exclusion procedures, an alien who is subjected to formal detention by the U.S. INS may have his custody determination reviewed by an Immigration Judge, with exceptions to those who are deportable for certain specified grounds. Moreover, an alien who is denied release on bond or who wishes to challege an Immigration Judge's custody determination may appeal to the Board of Immigration Appeals for further review. Furthermore, an alien may seek judicial review in the Federal District Courts of the United States by filing a petition for writ of habeas corpus.

Review of a final order of removal must be made within the time allowed (normally 30 days) to the Board of Immigration Appeals in Falls, Church, VA. Thereafter, an alien may appeal to a United States Court of Appeals for the appropriate judicial district and then to the United States Supreme Court. In some cases, an alien must appeal directly to a United States District Court before filing a petition for review with a regional Court of Appeals. Moreoever, recent amendments to the Immigration Laws have substantially affected an alien's ability and right to seek judicial review. These provisions are currently being litigated and are, therefore, not fully resolved and remain unclear, at best. Aliens in removal proceedings may not seek judicial review in any Court subject to the granting of discretionary relief under the Act (Cancellation of Removal, Voluntary Departure, Adjustment of Status, 212(h) & 212(i) waivers). Under the new immigration laws, the Board of Immigration Appeals is the final arbiter for discretionary relief.

An alien placed into Removal proceedings may apply for the following forms of relief: (1) Voluntary Departure under 240B(a); (2) Voluntary Departure under 240B(b); (3) Adjustment of Status; (3) Cancellation of Removal for non-permanent resident aliens (former "Suspension of Deportation") under 240A(b); (4) Cancellation of Removal for Lawful Permanent Resident aliens (former " 212(c) Relief") under 240A(a); (5) Political Asylum under 208; (6) Withholding of Removal under 241(b)(3); (7) Deferral of Removal (Convention Against Torture); (8) Termination [based upon legality of deportability, claim to U.S. citizenship; technical defect/violation that prejudices alien's rights].

 

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