Subsequent to that decision, the Immigration Commissioner published guidelines describing the factors that could warrant a favorable exercise of discretion (i.e., not to initiate proceedings against an individual). See 77 Interp.Rel. 1673. These factors include lawful permanent resident status; a lengthy residence in the U.S.; the (relatively minor) nature of any criminal conduct; humanitarian concerns such as family ties in the U.S. and medical conditions affecting the non-citizen or his or her family; lack of previous immigration violations; the likelihood of ultimately removing the individual; the person’s eligibility for other relief; and public opinion regarding the case, although this factor does not alone justify favorable exercise of discretion. These guidelines do not, however, create any enforceable legal rights in non-citizens.

  § 9-1 INVESTIGATION AND APPREHENSION

ICE and CBP use a variety of techniques to investigate the presence of removable non-citizens both in and coming to the United States. While ICE is primarily concerned with enforcement of immigration laws within the United States, CBP focuses on preventing illegal entries. Their current enforcement priorities are deterring illegal entries, locating and removing non-citizens who have committed crimes, penalizing employers who hire non-citizens without work authorization, prosecuting document fraud schemes, breaking up alien smuggling operations, and stopping terrorism. To achieve these goals, CBP inspects vehicles, persons, and belongings at the border and at certain fixed check-points both inside the border and in other countries. ICE uses roving patrols inside the U.S. to identify and detain suspected illegal entrants, audits and searches businesses alleged to unlawfully employ non-citizens, works with other law enforcement agencies to identify criminal non-citizens, and acts on information obtained through informants. This section examines the scope of ICE and CBP’s power to investigate and apprehend non-citizens.

§ 9-1.1 Immigration Service Powers Prior to Arrest

The INA provides that any immigration officer may, without a warrant:

(1) Interrogate any alien or person believed to be an alien as to his or her right to be or remain in the United States;

(2) Arrest any alien who in the officer’s presence or view is entering or attempting to enter the United States in violation of any law or if the officer has reason to believe the alien is in the United States in violation of any law and is likely to escape if not arrested;

(3) Board and search any vehicle to look for illegal aliens within a reasonable distance from the border. INA § 287(a).

The Code of Federal Regulations defines a reasonable distance from the border to be “100 air miles from any external boundary of the United States.” 8 C.F.R. § 287.1(a)(2). The statute appears to confer broad investigatory powers on immigration officials. The Supreme Court has held that evidence obtained in violation of the Fourth Amendment may be used in removal proceedings. Using a balancing test, the Court decided that the likely costs of excluding unlawfully obtained evidence outweigh the likely social benefits. Excluding such evidence would hinder the deliberately simple removal hearing system, would possibly suppress large amounts of information that had been obtained lawfully, and would “compel the courts to release from custody persons who would then immediately resume their commission of a crime through their continuing, unlawful presence in this country.” In the Court’s view, the social benefits from excluding such evidence would be minor because exclusion would have little deterrent effect on future Fourth Amendment violations by immigration officials. INS v. Lopez-Mendoza (Sup.Ct.1984).

a. Outside the Territorial Bounds of the United States

Ordinarily, the United States only has legal authority over persons and property contained within its territorial bounds, including its territorial waters. There are a few exceptions to this rule in the immigration context, including “pre-inspection” of non-citizens traveling to the U.S. from foreign ports, interdiction of undocumented migrants on the high seas, and cooperation with foreign law enforcement officials to investigate and prosecute alien smugglers and other human traffickers.

(1) PRE-INSPECTION

Congress has authorized the Secretary for Homeland Security, with the consent of the Secretary of State, to detail immigration officers for duty in foreign countries. INA § 103(a). Under that authority, CBP operates pre‑boarding inspection offices in Aruba, the Bahamas, Bermuda, Canada, and Ireland, to inspect non-citizens before their departure to the United States. Pre‑inspection occurs only when the vessel proceeds directly to this country and eliminates the need for inspection at the border.

(2) INTERDICTION

For several decades, U.S. law enforcement officials, primarily the Coast Guard, have been trying to prevent the entry of undocumented migrants by interdicting vessels in territorial waters and on the high seas. Those efforts gained attention in the early 1980s following the Mariel boatlift from Cuba and a mass exodus from Haiti. In 1981 the President of the United States, pursuant to an agreement with Haiti, issued Executive Order 12324, which gave the Coast Guard the authority to stop and board vessels coming from either the U.S. or Haiti. The Coast Guard would briefly interview the passengers and forcibly repatriate any who did not have an apparent claim for refugee status. In Haitian Refugee Center v. Gracey (D.C.Cir.1987), the court upheld the interdiction agreement, finding that it did not violate Due Process because non-citizens have no right to enter the U.S. 

Nonetheless, Haitians continued coming to the U.S. During fall‑winter of 1991-92, more than 16,000 Haitians were intercepted on the high seas and taken to the U.S. Naval Base at Guantanamo Bay in Eastern Cuba. They were questioned as to whether they had prima facie claims to asylum status. Except for a very brief period the Haitians had no access to lawyers. They also had no right to appeal. The interdiction and interview procedures were challenged in federal court and the challenge was initially sustained. The U.S. Court of Appeals for the Eleventh Circuit, however, held in Haitian Refugee Center v. Baker (11th Cir.1992) that the Administrative Procedure Act does not give non-citizens who were detained on the high seas and, thus, had never presented themselves at a U.S. border, a right to judicial review of immigration decisions. Moreover, the court concluded that these individuals had no private right of action, unless they qualified for refugee status. Further, the court stated that the Refugee Center and the Haitians’ attorneys had no First Amendment claim for gaining access to the detainees. The Supreme Court denied certiorari. Ultimately, 35 percent of the Haitians were found to have prima facie claims and were transported to the U.S. for adjudication of their asylum cases.  Almost all of the others were returned to Haiti.

In May 1992, the U.S. President ordered the Coast Guard to return any Haitians leaving their country in boats without an inquiry as to whether they qualified for asylum. The U.N. High Commissioner for Refugees and the Haitian Refugee Center challenged this measure as a violation of the U.S. government’s obligations under the Protocol relating to the Status of Refugees. In Sale v. Haitian Center Council, Inc. (Sup.Ct.1993), the Court again upheld the President’s executive order that authorized summary return of Haitians intercepted on the high seas without considering asylum claims. The court did not find any violation of Article 33 of the U.N. Protocol relating to the Status of Refugees or INA § 243(h)(now INA § 241(b)(3)), both of which prohibit the return of refugees to territories where their lives or freedom would be threatened. On April 4, 1994, Haitian President Aristide withdrew his government’s agreement to stopping Haitian boats on the high seas and President Clinton ordered that Haitians would no longer be subject to interdiction without individualized inquiry as to whether they qualify for refugee or asylum status.

In 1995, after years of sporadic discussions, the U.S. and Cuba entered an agreement allowing the U.S. government to interdict Cuban vessels and repatriate undocumented migrants from that country. Although such traffic has slowed since 1994, Cubans, Haitians, and others continue to try to reach the U.S. from the sea. In recent years, the Coast Guard has interdicted an increasing number of Ecuadorian and Chinese migrants.  Ecuadorians travel by sea to Mexico and then try to enter the U.S. over land. Chinese migrants often travel by sea to Guam and then use fraudulent documents to obtain air passage to the U.S., or travel by air to South America and then by sea to the U.S. In addition to interdiction, the U.S. is now engaged in efforts to stop the smuggling rings that transport many of these migrants.

(3) OPERATION “GLOBAL REACH” AND ALIEN SMUGGLING

In 1997, the INS established Operation “Global Reach” to work with law enforcement officials overseas to deter alien smuggling.  The operation focuses on training officials and airline personnel to detect document fraud and on obtaining information regarding smuggling operations.

Smuggling of undocumented migrants is an international business believed to generate billions of dollars in annual revenues. Several smuggling disasters have attracted global attention. In 1993, a cargo ship carrying hundreds of undocumented Chinese migrants ran aground off the coast of New York; several of the passengers died trying to swim to shore. In January 2000, three Chinese migrants were found dead in a sealed container on board an ocean freighter docked in Seattle. In Britain that same year, 58 Chinese migrants died of suffocation in the back of a freight truck found in Dover port. The Chinese are not the only people engaging in this traffic, however: Mexican smuggling operations regularly bring Mexican and Central American migrants across the U.S. border, and other smuggling rings transport people from the Middle East and the former Soviet bloc to Western Europe.  In an effort to address this problem, in December 2000, 79 countries signed the United Nations Protocol Against Smuggling Migrants. The Protocol, which has not yet entered into force, will provide for cooperative efforts among state parties, including exchange of information and interdiction of vessels suspected of smuggling migrants. The United States signed the protocol but has not yet become a state party.

CBP has the authority to stop all vehicles and persons at the border or its functional equivalent. See INA § 235. The Inspections division of CBP determines the admissibility of non-citizens arriving at designated ports of entry, while the Border Patrol works to prevent non-citizens from entering the U.S. through locations other than the authorized ports of entry and to apprehend non-citizens who have entered illegally. The Border Patrol accounts for approximately 95 percent of all apprehensions made by immigration authorities each year, and most of these occur near the U.S.-Mexico border.

Immigration officers may board and search any vehicle, including boats and aircraft, which they believe contains non-citizens.  These searches may be legally conducted without a search warrant and can occur at the border or in the territorial waters of the United States. INA §§ 235, 287.

When non-citizens arrive at the border, CBP is authorized to inspect them to determine whether they may be admitted into the United States.  INA § 235(a). A visa is usually essential for admission but it does not guarantee admission. After the inspection, which is extremely brief in most cases, the examining officer decides whether to admit the non-citizen. If the examining immigration officer determines that a non-citizen is not clearly and beyond doubt entitled to be admitted and the non-citizen has not requested asylum, the officer may summarily order the non-citizen’s removal. INA § 235(b)(1)(A).  If a person’s admissibility is questionable, the officer may detain him or her for secondary inspection or defer inspection and parole the individual into the U.S. Inadmissible non-citizens may be allowed to withdraw their application for admission during inspection and thus escape the consequences of removal, unless they have presented false documents or have misrepresented a material fact in order to obtain a visa or gain admission to the U.S., in which case they will be removed. INA § 235(a)(4). Most inadmissible non-citizens are given the option of withdrawal.

If a non-citizen appears inadmissible, the officer may temporarily detain him or her for further inquiry. This procedure is customarily referred to as secondary inspection. Although secondary inspection involves an interrogation, the Fifth Circuit held in United States v. Henry (1979) that no Miranda‑type warning is necessary unless the questioning becomes custodial in nature. Applicants for admission have no right to counsel during inspection unless taken into custody on criminal charges. 8 C.F.R. § 292.5(b).

The immigration officer also may elect to release a non-citizen on parole pending further investigation, unless the non-citizen is inadmissible on criminal or national security grounds. See INA § 212(d)(5). Inspectors grant parole chiefly as a matter of practicality, because time constraints often prevent them from making a thorough investigation at the border. Immigration officers can also parole non-citizens who might be able to overcome inadmissibility, so that they can gather additional evidence or seek a waiver of the grounds of inadmissibility. These cases are referred to the appropriate district director for consideration. 8 C.F.R. § 235.2.  Non-citizens who enter on parole have not been admitted, and may be subject to expedited removal proceedings if ultimately deemed inadmissible. The Board of Immigration Appeals held in Matter of Castellon (1981) that parole is purely discretionary and no administrative review of the decision is possible, although judicial review may lie in a district court for a declaratory judgment or habeas corpus action.

As a result of changes enacted by IIRIRA, immigration officers are authorized to remove many inadmissible non-citizens through a special process known as expedited removal. See § 9-2.3, infra.  For example, if an inspections officer suspects that an individual is inadmissible on national security grounds, the officer may order that person removed without further inquiry, subject only to review by the Secretary of Homeland Security.  INA § 235(c).

(1) INVESTIGATORY STOPS FOR IDENTIFICATION

While CBP can search any person or vehicle at the border, its powers within the United States are more limited. INA § 287(a) authorizes immigration officers to board vehicles within a “reasonable distance” from the border solely to search for non-citizens. The Code of Federal Regulations defines a reasonable distance from the border to be “100 air miles from any external boundary of the United States.” 8 C.F.R. § 287.1(a)(2). Despite this seemingly broad statutory authority, the Supreme Court has held that this power is limited by the Fourth Amendment. In Almeida-Sanchez v. United States (Sup.Ct.1973), the Supreme Court held that a warrantless search of an automobile made by a roving patrol without probable cause or consent violated the non-citizen’s right to be free from unreasonable searches and seizures. The Court has, however, upheld the right of Border Patrol officers to make brief investigatory stops using either roving patrols or fixed checkpoints.

In its Fourth Amendment jurisprudence, the Court seeks to balance the government’s interest in law enforcement against the intrusion into the individual’s privacy. In the immigration context, the Court has consistently found that the government has a strong interest in preventing the illegal entry of non-citizens and that such entries cannot be entirely halted at the border. It has also found the intrusion caused by a brief investigatory stop to be modest. United States v. Brignoni-Ponce (Sup.Ct.1975). Hence, it has held that a roving patrol stopping a vehicle and questioning the occupants about their citizenship and immigration status does not violate the Fourth Amendment so long as the officer has a reasonable suspicion, based on the “totality of circumstances,” that the particular vehicle may contain non-citizens who entered the U.S. illegally. United States v. Arvizu (Sup.Ct. 2002). A suspicion is reasonable if it is based on articulable facts that, viewed in the light of the officer’s experience, give rise to an inference that criminal activity may be afoot, even if each individual fact viewed separately could have an innocent explanation.  Id. Factors relevant to the existence of a reasonable suspicion include proximity to the border, traffic patterns, previous experience with undocumented non-citizens travelling in the area, the driver’s behavior, the appearance of the vehicle, and the officer’s experience in recognizing the characteristic appearance of foreign nationals. Brignoni-Ponce (Sup.Ct. 1975).

In addition, Border Patrol officers can make routine investigatory stops at reasonably located fixed check‑points even in the absence of any suspicion that the vehicle contains illegal aliens.  The Court in United States v. Martinez-Fuerte (Sup.Ct.1976) reasoned that the intrusion on Fourth Amendment rights involved in such a stop is less severe than that caused by roving patrols since motorists are given advance warning of the stop which involves only the briefest detention - usually less than a minute. At such stops, most drivers are typically waived through, while a small percentage are stopped for further questioning regarding their citizenship and immigration status. The Court held that vehicles may not be searched at such stops without either the consent of the driver or probable cause to believe that the vehicle contains undocumented non-citizens. United States v. Ortiz (Sup.Ct.1975). When conducting the search, immigration officers may inspect only those areas of the car where a person could reasonably hide. In other words, the officer may not, as the Supreme Court observed in United States v. Ross (Sup.Ct.1982), open and search small pieces of luggage or other small containers and compartments to look for non-citizens. Border Patrol officers may also search for narcotics in the course of an immigration stop, but the Fifth Circuit has held that they may not prolong the search beyond the time needed to determine whether any immigration violations have occurred unless the officers have an individualized suspicion of wrongdoing. U.S. v. Portillo-Aguirre (5th Cir.2002).

The mechanisms the Border Patrol use inside the border include fixed checkpoints on major highways, roving patrols, video cameras, and electronic sensors on unpatrolled roads. These efforts are primarily focused on areas near the U.S.-Mexico border. The focus on entries from Mexico has raised the question of whether and to what extent a person’s Hispanic appearance may be used to justify an investigatory stop. In Brignoni-Ponce, the Court held that ethnic appearance could not alone create a reasonable suspicion of illegal activity. In dicta, however, the Court stated that ethnic appearance could justify a traffic stop when combined with other suspicious circumstances, as there was a significant probability that any particular individual of Hispanic appearance was a non-citizen. Twenty-five years later, noting that Hispanic persons had become a majority in many border areas, the Ninth Circuit held that ethnic appearance could no longer be considered a relevant factor. United States v. Montero-Camargo (9th Cir.2000). The court found that a characteristic shared by a substantial percentage of the population could not be the basis for a particularized suspicion of wrongdoing. 

(2) TEMPORARY DETENTION FOR QUESTIONING. 

One step between an investigatory stop for identification and an actual arrest is the forcible detention of a suspected non-citizen for interrogation. While the person questioned during an investigatory stop is free to leave, a person forcibly detained is not, even though he or she is not technically under arrest. Yam Sang Kwai v. INS (D.C.Cir.1969).  Immigration officers may forcibly detain persons temporarily when the circumstances warrant a reasonable suspicion that they are illegally in the United States. The First Circuit rationalized in Navia-Duran v. INS (1977) that, since a forcible detention falls short of an actual arrest, no Miranda‑type warning is necessary before questioning a forcibly detained non-citizen. Other circuits endorse this view. Courts will consider, however, the voluntariness of any statement given by the non-citizen in the absence of a Miranda‑type warning. If immigration officials coerce the non-citizen, his or her right to Due Process, as guaranteed by the Fifth Amendment, may be violated. The court, as in Navia-Duran, may suppress any evidence obtained through coercion during the removal hearing.

d. Interior of the United States

With the exception of areas within 100 miles of the external boundaries of the United States, CBP and ICE may not make investigatory stops using roving patrols or fixed check-points. They may, however, briefly detain non-citizens for interrogation. As with detentions made near the border, immigration authorities must have a reasonable belief that individuals are illegally present in this country before detaining them for interrogation.  INA § 287(a). 

(1) ENFORCING RESTRICTIONS ON EMPLOYMENT

ICE’s investigative efforts include searching businesses believed to employ unauthorized non-citizen workers. In the past, the target of these searches was the workers themselves. After the 1986 IRCA instituted civil and criminal penalties for employers, immigration authorities shifted their focus to them, in particular employers who commit human rights abuses or may be part of alien smuggling rings. ICE does, however, continue to search out and arrest undocumented workers employed at various businesses.  See, e.g., Montero v. I.N.S. (2nd Cir.1997). The federal courts typically apply a relaxed Fourth Amendment standard to such searches. See, e.g., International Molders’ and Allied Workers Local Union No. 164 v. Nelson (9th Cir.1986). In INS v. Delgado (Sup.Ct.1984), the Supreme Court held that a factory search did not constitute a “seizure” of the workers, and thus did not violate their Fourth Amendment rights, where they were free to move about the factory during the search.

(2) “SPECIAL CIRCUMSTANCES” 

Special circumstances may enlarge immigration officials’ authority. The D.C. Circuit Court of Appeals upheld the Attorney General’s authority, during the Iranian hostage crisis, to order nonimmigrant Iranian students to report to INS district offices and to demonstrate their lawful status. Narenji v. Civiletti (D.D.C.1979). Following the September 11, 2001, attacks on New York City, Washington, D.C., and Pennsylvania, the INS detained more than 700 non-citizens of Middle Eastern background on immigration violations. Citing national security concerns, the Service refused to release the names of the persons held, most of whom had committed only minor immigration offenses. As of this writing, immigration officials still have not stated how many were eventually removed.  A court order requiring the Service to make this information public was stayed pending appeal. See Center for National Security Studies v. U.S. Department of Justice (D.D.C.2002). At the same time, the Attorney General’s Anti-Terrorism Task Force interviewed some 5000 students, tourists, and visitors from Middle Eastern countries, seeking information about terrorist activities. Although immigration violations were not the focus of these interviews, interviewers were instructed to notify immigration authorities if they suspected that any interviewee was in violation of status. 78 Interp.Rel. 1816.

Local law enforcement officials have in the past participated in immigration enforcement activities.  In Gonzalez v. City of Peoria (9th Cir.1983), the court found that the federal power over immigration does not necessarily preclude local enforcement of some provisions of the INA. State and local law agencies usually enforce immigration laws indirectly, however, by reporting persons who are suspected of violating immigration laws to immigration authorities. 

A few provisions of the INA allow local law enforcement agencies to participate more directly in immigration enforcement. § 103(a)(8) allows the Secretary for Homeland Security to delegate any immigration powers he or she deems necessary to local law enforcement in the event of a “mass influx of aliens.” Section 103(c) authorizes the Secretary (formerly the Attorney General) to enter cooperative agreements with state and local agencies to enforce immigration laws. INA § 287(g)(1) further authorizes the Secretary to enter written agreements with any state or local officer or employee qualified to perform the functions of an immigration officer.

Although § 287(g)(1) was added to the INA in 1996 as part of the IIRIRA, it was not implemented until 2002. As part of its efforts to combat terrorism, the INS in 2002 established a pilot program with Florida's Regional Domestic Security Task Forces under which designated state and local law enforcement officers may perform immigration functions. Participating officers, supervised by immigration officials, can interrogate persons suspected of immigration violations, prepare Notices to Appear for signature by authorized immigration officials, and assist in pre- or post-arrest processing of non-citizens. 79 Interp.Rel. 1120.

§ 9-1.2 Arrests

a. Arrests Without a Warrant. 

If ICE issues a warrant for arrest, it simultaneously issues a Notice to Appear before the immigration court to contest the removal. District directors, deputy district directors; assistant directors; officers in charge; chief, deputy, and assistant patrol agents; the Assistant Commissioner, Investigations; Institutional Hearing Program Directors; and port directors may issue an arrest warrant, but only if it is necessary to hold the non-citizen in custody. 8 C.F.R. § 287.5. Once issued, ICE must serve the warrant within a reasonable period of time. See United States v. Weaver (4th Cir.1967). Should ICE determine that a non-citizen is not subject to removal, any officer authorized to issue an arrest warrant may cancel it.

The Code of Federal Regulations also requires arresting officers to inform non-citizens at the time of their arrest of the reason for the arrest and to advise them of their rights. 8 C.F.R. § 287.8(c).  Non-citizens who are not advised of these rights or fail to understand them may move to suppress evidence obtained because of the lack of warning. Navia-Duran v. INS (1st Cir.1977).

c. Release on Bond or Personal Recognizance. 

ICE has discretion to release non-citizens it has taken into custody, unless they are subject to removal on criminal grounds or have been certified as suspected terrorists. Detention is mandatory for suspected terrorists and persons removable on certain grounds related to criminal conduct. INA §§ 236, 236A. Where detention is not mandatory, ICE may (1) continue to detain the arrested non-citizen pending removal proceedings; (2) release the non-citizen upon bond in the amount of not less than $1500 with security approved by the Secretary for Homeland Security and containing such conditions as the Secretary may prescribe; or (3) release the non-citizen on conditional parole. INA § 236(a). The INA also authorizes ICE to revoke the bond or parole at any time and rearrest the non-citizen under the original warrant. INA § 236(b).

In practice, as the Board observed in Matter of Patel (BIA 1976), non-criminal aliens are usually granted release on personal recognizance unless immigration authorities believe that they will not appear for subsequent hearings. The factors considered relevant by the Board in Patel to determine whether a non-citizen is a bail risk include prior arrests in this country, convictions in the person’s native country, illegal entry into the United States, participation in subversive activities, employment status, and the presence of relatives in the United States. The bail or parole decision is not subject to judicial review. INA § 236(e).

INA § 236(c) mandates detention until the removal hearing of any non-citizen convicted of an aggravated felony. The Ninth Circuit Court of Appeals held, in Kim v. Ziglar (9th Cir.2002), that this statute violates the constitutional right of due process when applied to permanent residents because it does not allow individual hearings to determine whether a particular person presents a flight risk. The Supreme Court upheld the statute, however, finding that detention for “the brief period necessary for ... removal proceedings” is an appropriate way to ensure that removable non-citizens will appear for their removal hearings and will not commit additional crimes before being removed. Demore v. Kim (Sup.Ct.2003).

d. Decision Not to Continue Removal Proceedings

In some cases, ICE may decide not to continue removal proceedings after taking an individual into custody. Immigration officials must inform the individual of such a decision in writing. Having exercised its prosecutorial discretion in this manner, ICE should not reinitiate proceedings against the individual unless new facts come to light or there is a change in circumstances. See 77 Interp.Rel. 1673. 

§ 9-2 REMOVAL HEARING

In general, persons who are subject to removal after being lawfully admitted and non-citizens who are present in the U.S. without having been admitted are entitled to a removal hearing. Non-citizens denied admission at a port of entry are not entitled to a removal hearing and are removed immediately unless they request asylum.

§ 9-2.1 Notice to Appear

The removal process officially commences when a Notice to Appear is filed with an immigration court. 8 C.F.R. § 239.1.  Only those officials with power to issue warrants (listed in 8 C.F.R. § 239.1) have the authority to issue a Notice to Appear and then, as the Supreme Court observed in Abel v. United States (Sup.Ct.1960), only on the basis of a prima facie showing of removability.

The INA lists the specific requirements for a Notice to Appear. It must state the nature of the proceeding, the legal authority under which the proceeding is conducted, the act or conduct alleged to be in violation of the law, the charges against the non-citizen, and the statutory provisions alleged to have been violated. INA § 239(a)(1). In addition, the Notice to Appear states that further proceedings will be held and notifies the non-citizen of the need to keep the government apprised of his or her address and the consequences of failing to do so. INA § 239(a)(1). The Notice must inform the non-citizen of his or her right to counsel and must include a list of free legal service programs available in the locale. The Court of Appeals in Montilla v. INS (2d Cir.1991) held that a failure to give the alien notice of these rights may result in a new hearing.

Before filing the Notice with the immigration court, ICE must serve it on the non-citizen. ICE may either deliver the notice by personal service or by registered mail to the non-citizen or the non-citizen’s “counsel of record.” INA § 239(a)(1). In practice, notice is usually served by mail. The INA requires all non-citizens to notify immigration authorities within ten days of any change of address. See § 8-2.2(c), supra.  In the past, this requirement was not strictly enforced. In one case, the BIA held that mailing a Notice to Appear to a non-citizen’s last known address was not effective service of process where the non-citizen had failed to report an address change and the INS knew that the Notice had not reached the intended recipient. Matter of G- Y- R- (BIA 2001). After that decision, the INS began to enforce the reporting requirement more strictly and notice of the requirement is now given on most immigration forms. Consequently, mail to a non-citizen’s last known address should in the future serve as sufficient service of process.

After receiving a Notice to Appear, the non-citizen must immediately give ICE his or her current address and telephone number in order to receive written notice of scheduled proceedings. INA § 239(a)(1). A non-citizen who fails to appear at a scheduled hearing will be ordered removed in absentia if ICE establishes by “clear, unequivocal, and convincing evidence” that the individual is removable and that ICE either provided written notice of the proceeding or was not required to do so because the non-citizen did not provide a current address. INA § 240(b)(5). A person ordered removed in absentia after receiving oral notice of the proceedings in a language he or she understood is ineligible for most forms of discretionary relief for ten years, unless the failure to appear was due to exceptional circumstances. INA § 240(b)(7). If the failure to appear was due to exceptional circumstances, the non-citizen may move within 180 days to reopen proceedings.  Non-citizens who did not receive written notice of the hearing at their address of record or did not appear because they were in custody at the time of the hearing may move to reopen at any time. INA § 240(b)(5). The Board of Immigration Appeals endorsed the fairness of this procedure in In re S (1957). 

Sections 239 and 240 outline the basic requirements for the proceedings: (1) non-citizens must be given proper notice; (2) they may choose to be represented by counsel; (3) they shall have the opportunity to offer evidence in their behalf and examine evidence against them; (4) a decision to remove must be based upon “reasonable, substantial, and probative evidence.” INA §§ 239(a), 240(b)(4)(A), 240 (b)(4)(B), 240(c)(3).

§9-2.2 Participants in the Removal Hearing

Of course, the most obvious party to the proceedings is the non-citizen, whose rights will be discussed in a following subsection. The removal hearing also involves an immigration judge, the service counsel, the non-citizen’s counsel, an interpreter if necessary, and often witnesses.

In the past, the immigration judge was called an “inquiry officer,” and served as investigator, prosecutor, and judge. The judicial function was separated from the investigation and prosecution functions in a 1983 reorganization.  Immigration judges and the Board of Immigration Appeals are part of the Executive Office for Immigration Review (EOIR), an office within the Department of Justice. See § 3-2.2, supra.

Immigration judges are selected by the Attorney General. The judges may conduct specified classes of proceedings, including removal hearings. INA § 101(b)(4). The INA authorizes the immigration judge to “conduct proceedings for deciding the inadmissibility or deportability [removability] of the alien, . . . [to] administer oaths, receive evidence, interrogate, examine, and cross-examine the alien and any witnesses, and . . . [to] decide whether an alien is removable from the United States.” INA § 240. The INA allows the immigration judge to serve as both prosecutor and judge, although in practice the judge acts as a prosecutor rarely and only when the non-citizen concedes removability. The Ninth Circuit in LeTourneur v. INS (9th Cir.1976) has, however, held that the dual role of the immigration judge is consistent with Due Process.

In addition, the Code of Federal Regulations provides the immigration judge with the authority to consider claims for discretionary relief and to determine the country of removal. 8 C.F.R. §§ 240.11, 240.10(f).  As a presiding officer in a removal hearing, the immigration judge has the authority to hear motions for postponements, to rule on the admissibility of evidence, to order the taking of depositions if a witness is not readily available and his or her testimony is essential, and to issue subpoenas. 8 C.F.R. §§ 240.6, 240.7, 3.35(a), 3.35(b). The immigration judge may not, however, exercise authority in matters exclusively under the control of the district director, including, but not limited to, waivers of inadmissibility, Notices to Appear, and extensions of temporary stay. Finally, if the immigration judge considers him- or herself unqualified to conduct the hearing, he or she may withdraw pursuant to the provisions of 8 C.F.R. § 240.1(b). According to the Fifth Circuit in Marcello v. Ahrens (5th Cir.1954), one such circumstance calling for withdrawal occurs when the immigration judge performed an investigatory function in the case. The non-citizen must request the judge to withdraw if he or she is unqualified or biased and if the judge refuses, the ruling may be questioned on appeal.

The district director assigns a service counsel, who acts as “prosecutor” for the government, to the case. 8 C.F.R. § 240.2(b). The service counsel has the authority “to present evidence, and to interrogate, examine and cross‑examine the alien or other witness in the proceedings.” 8 C.F.R. § 240.2(a). The service counsel need not be a lawyer. The Board of Immigration Appeals in Matter of Reyes-Gomez (1973) concluded that using a lay‑person as service counsel does not violate Due Process. The service counsel may appeal a decision of the immigration judge and may move for reconsideration. 8 C.F.R. § 240.2(a).

The INA provides that non-citizens “shall have the privilege of being represented, at no expense to the Government, by counsel of the [non-citizen’s] choosing who is authorized to practice in such proceedings.” INA § 240(b)(4). Non-citizens are informed of this right, and of the availability of pro bono legal services, several times during the removal process, including at the time of arrest, when served with the Notice to Appear, and at the outset of the removal hearing.  Removal hearings may not be scheduled until at least ten days after a Notice to Appear is filed, to allow the non-citizen to obtain counsel. INA § 239(b)(1).  (In practice, there is usually a much longer wait for a hearing.) The Code of Federal Regulations allows the following persons to represent non-citizens in removal proceedings: (1) attorneys who are members in good standing of the highest court of any state, (2) under certain conditions, law students and law graduates not yet admitted to the bar, (3) reputable individuals of good moral character, (4) representatives of accredited organizations recognized by the Board of Immigration Appeals, and (5) accredited officials of the government to which the non-citizen owes allegiance. 8 C.F.R. §§ 1.1(f), 292.1(1)-(5).

d. Interpreter

Although there is no statutory requirement for them to do so, immigration authorities will generally provide an interpreter to any non-citizen who requests one. According to the Seventh Circuit in Niarchos v. INS (7th Cir.1968), a removal hearing conducted without the assistance of an interpreter, in a language the non-citizen does not understand, may violate Due Process. An interpreter in a removal case is sworn to interpret and translate accurately. 8 C.F.R. § 240.5. If the interpreter appears to be incompetent, the non-citizen may raise the issue on appeal, but the Second Circuit in United States ex rel. Catalano v. Shaughnessy (2d Cir.1952) held that the non-citizen has the burden of proving the interpreter’s incompetence. The interpreter usually interprets only direct questions or statements to the non-citizen and the non-citizen’s responses; accordingly, the non-citizen may not understand additional testimony, arguments of counsel, and other matters arising in the hearing.

In 1903, the Supreme Court considered the Due Process rights of non-citizens during removal proceedings in the Japanese Immigrant Case (Sup.Ct.1903). That case established that non-citizens have the right to notice of charges and an opportunity to be heard. Those rights are now codified in INA § 239 et. seq.

The INA also provides that non-citizens “shall have a reasonable opportunity to examine the evidence against [them], to present evidence in [their] own behalf, and to cross-examine witnesses presented by the Government.” INA § 240(b)(4)(B). Non-citizens may present any evidence that is material and relevant either to the issue of removability or discretionary relief, including oral testimony and written depositions.  If an essential witness is unavailable to testify, the non-citizen may request the immigration judge to order a deposition or may apply for a subpoena to compel the presence of a witness at the hearing. The request for a subpoena must state what the requester expects to prove by the testimony, and must affirmatively show that a diligent effort was made to produce the witness without the subpoena. 8 C.F.R. § 287.4(a)(2). The right to cross‑examine includes the right to examine government witnesses whose testimony was submitted via an affidavit, but, as the Sixth Circuit concluded in Weinbrand v. Prentis (6th Cir.1925), non-citizens must request an opportunity for cross-examination at the time the witnesses’ testimony is introduced.

Non-citizens have the right to be present at and participate in their own removal hearing. As noted in § 9-2.1, supra, however, non-citizens who do not provide their current address to ICE or who fail to appear for a hearing after receiving written notice may be ordered removed in absentia. At the hearing, the non-citizen may choose either to testify or remain silent. The Supreme Court in Hyun v. Landon (Sup.Ct.1956), however, affirmed the right of the immigration judge to draw unfavorable inferences from the non-citizen’s silence. See also Cabral-Avila v. INS (9th Cir.1978) (same holding). If necessary, the immigration judge can compel the non-citizen to testify. According to the Seventh Circuit in Laqui v. INS (7th Cir.1970), non-citizens in removal hearings may claim the Fifth Amendment privilege against self-incrimination only if their alleged actions constitute a crime.

§9-2.4 The Hearing

a. Conduct of the Hearing

Removal hearings are open to the public unless the immigration judge closes the hearing in order to protect witnesses, the non-citizen, or the public interest. 8 C.F.R. § 3.27. Closure is also authorized in cases that involve domestic abuse. In September 2001, the Chief Immigration Judge directed all immigration judges to close proceedings to the public in “special interest cases.” 78 Interp.Rel. 1816. “Special interest cases” are primarily those involving non-citizens suspected of having ties to terrorism. The two Circuit Courts that have considered the issue have split on whether the First Amendment guarantees public access to such hearings. See Detroit Free Press v. Ashcroft (6th Cir.2002), North Jersey Media Group, Inc. v. Ashcroft (3rd Cir.2002). While these cases were pending, the EOIR promulgated an interim rule permitting immigration judges to issue protective orders sealing evidence that implicates national security and to close proceedings that involve such evidence. 67 Fed.Reg. 36799. Non-citizens may review sealed evidence but may not reveal it outside the court on penalty of losing their right to discretionary relief.

At the outset of the hearing, the immigration judge must advise the non-citizen of his or her rights during the hearing and inquire as to whether he or she waives any of those rights, place the non-citizen under oath, read and explain the allegations of the Notice to Appear, enter the notice as an exhibit in the official record, and ask the non-citizen to plead to the allegations in the Notice to Appear. 8 C.F.R. § 240.10(a). In a procedure analogous to pleading in the criminal context, the non-citizen must either admit or deny the allegations of the Notice to Appear. If the non-citizen admits the allegations and concedes removability, as usually occurs, the immigration judge accepts the plea and the hearing moves forward to determine issues of discretionary relief. 8 C.F.R. § 240.10(c).  Alternatively, if the non-citizen denies the allegations, the immigration judge requests ICE to assign a service counsel and continues with both sides presenting evidence. 8 C.F.R. § 240.10(d). Most immigration judges handle these preliminary matters at a “Master Calendar Hearing,” at which they schedule a later, separate hearing on the merits of the case for those cases in which there is a tenable argument that the non-citizen is not removable or is entitled to some form of relief.

b. Evidence

Both the service counsel and the non-citizen are allowed to present evidence at the removal hearing. The rules of evidence applicable to criminal proceedings, however, do not apply to removal hearings.  The Supreme Court in Bilokumsky v. Tod (1923), noted that a failure to abide by judicial rules of evidence does not render a removal hearing unfair.  Evidence during a removal hearing is controlled by the Code of Federal Regulations; any type of evidence is admissible so long as it is material and relevant to the issues before the hearing. 8 C.F.R. § 240.7(a). The regulation allows hearsay evidence if it meets the test of relevance. In Cunanan v. INS (9th Cir.1988), however, the court refused to admit into evidence an affidavit from the non-citizen’s spouse indicating that her marriage was fraudulent.  The court stated that admission of the affidavit would violate Due Process because the INS did not introduce the spouse as a witness and did not inform the non-citizen about her statement until the hearing date. Evidence may take the form of depositions and affidavits. If authenticated, tangible evidence is admissible. Either party may call witnesses to testify, but such testimony only will be taken under oath or affirmation administered by the immigration judge.

c. Ancillary Matters

 (1) ADDITIONAL CHARGES

In most cases, the Notice to Appear states all of the charges against the non-citizen. The Ninth Circuit concluded in Madrona Banez v. Boyd (9th Cir.1956), that incorrect statements or errors in the Notice to Appear do not, however, render it invalid, if the service counsel establishes the correct information at the hearing. During the hearing, the service counsel may lodge additional charges for removal.  8 C.F.R. § 240.10(e). The additional charges must be submitted in writing and the immigration judge must read and explain them to the non-citizen. Again, the judge must inform the non-citizen that he or she has a right to retain counsel and a right to request additional time to meet the charges. 8 C.F.R. § 240.10(e). The Second Circuit in United States ex rel. Catalano v. Shaughnessy (2d Cir.1952) upheld the procedure of lodging additional charges as consistent with Due Process.

 (2) DESIGNATION OF COUNTRY AND APPLICATION FOR DISCRETIONARY RELIEF

During the hearing, the immigration judge must provide the non-citizen with an opportunity to designate a country to which he or she will be sent in the event removal is ordered. INA § 241(b)(2).  This designation does not constitute an admission of removability. The immigration judge may, however, disregard the non-citizen’s designation and name as an alternative country of removal any country of which the non-citizen is a subject or national in the event that the designated country does not accept the non-citizen.  INA § 241(b)(2). The same section of the Immigration and Nationality Act sets up a system for determining more alternates if needed. Moreover, the Secretary for Homeland Security may disallow a country if he or she determines that removal there would be prejudicial to the interests of the United States.

Non-citizens who believe that they are eligible for some form of discretionary relief must apply for it during the hearing.  8 C.F.R. § 240.11. (The types of discretionary relief available will be more fully discussed in “Relief From Removal” § 9-4, infra.) Like the designation of a destination country, an application for discretionary relief is not construed as an admission of removability. The immigration judge must inform non-citizens of their apparent eligibility to apply for asylum, cancellation of removal, adjustment of status, or registry, and must allow them an opportunity to apply.  The judge is not required to inform non-citizens about other types of available relief.

 (3) THE DECISION

  (a) Burden of Proof. The removal decision must be based on reasonable, substantial, and probative evidence. INA § 240(c)(3)(A). ICE has the burden of establishing by clear and convincing evidence that a non-citizen who has been lawfully admitted to the U.S. is removable. INA § 240(c)(3)(A). The Supreme Court established this standard of proof in Woodby v. INS (Sup.Ct.1966).  The Second Circuit held in United States ex rel. Bishop v. Watkins (2nd Cir.1947) that initially, the government has the burden of proving, with clear and unequivocal evidence, that the non-citizen is, indeed, a non-citizen.  The burden then shifts to the non-citizen to prove that he or she is lawfully present in the U.S. pursuant to a prior admission. INA §§ 240(c)(2), 291.  If lawful presence is established, the burden shifts back to ICE to prove that the non-citizen is removable.

A non-citizen who has been deemed an applicant for admission has the burden of proving beyond a reasonable doubt that he or she is entitled to admission.

  (b) Rendering the Decision. The decision of the immigration judge may be either written or oral and must include a finding as to inadmissibility or removability. A formal enumeration of findings is not required. 8 C.F.R. § 240.12(a). The decision must direct either the non-citizen’s removal, the termination of the proceedings, or the granting of discretionary relief. The decision may be in the alternative. 8 C.F.R. § 240.12(c). If the decision is written, a copy must be served on the non-citizen and the service counsel.  Oral decisions, however, must be made with both parties present. 8 C.F.R. § 240.13. The decision is final unless there is an appeal. 8 C.F.R. § 240.14.  The non-citizen may appeal any decision to the Board of Immigration Appeals (except there shall be no appeal from an order of removal entered in absentia), but must do so within thirty days of the decision. 8 C.F.R. § 240.15.

§ 9-2.5 The Removal Hearing for Inadmissible Non-Citizens

Although the IIRIRA consolidated the former exclusion and deportation hearings into a single removal hearing, significant differences remain between the treatment of inadmissible non-citizens and those who have been lawfully admitted. As noted above, persons charged with inadmissibility have the burden of proving their entitlement to admission beyond a reasonable doubt. Further, they are not eligible for some forms of discretionary relief.

The chief difference, however, concerns a procedure known as expedited removal, which applies to any non-citizen attempting to enter the U.S. who either lacks the documents required for admission, presents false documents, or misrepresents a material fact to obtain a visa or gain admission to the U.S. INA § 235(b)(1), 8 C.F.R. § 235.3. The same statute allows immigration authorities to impose expedited removal on non-citizens who have been present in the U.S. for less than two years after entering without inspection, but this provision is not currently being applied. Under this procedure, an immigration officer may order such persons removed without further hearing or review, unless they indicate an intent to apply for asylum and have a credible fear of persecution. INA § 235(b)(1). A similar procedure applies to persons deemed inadmissible on security grounds. INA § 235(c).  Expedited removal decisions may only be challenged in habeas corpus proceedings, in which review is limited to determining whether the petitioner (1) is an alien; (2) was ordered removed under INA § 235(b)(1); (3) can prove by a preponderance of the evidence that he or she is a lawful permanent resident; and (4) is entitled to further inquiry as to his or her status as a refugee or asylee.  INA § 242(e)(2).

  IIRIRA, by effectively barring judicial review of expedited removal, gave individual immigration officers tremendous unreviewed discretion to remove non-citizens and prevent them from reentering the United States for five years. The 1996 Act states that no court has jurisdiction to review (1) a decision to invoke the expedited removal provision; or (2) the application of expedited removal to specific individuals, including the determination regarding the non-citizens “credible fear of persecution” (see chapter 10, infra); or (3) procedures and policies adopted by immigration authorities to implement the expedited removal provisions. INA § 242(a)(2)(A).

The Supreme Court has long held that persons arriving at the borders of the United States are not entitled to the Due Process rights afforded those within the country. See Shaughnessy v. United States ex rel. Mezei (Sup.Ct.1953). Whatever process Congress accords such persons is considered sufficient. The Court did, however, create an exception to this rule for permanent residents returning from a short trip abroad, finding that their connection to the U.S. entitles them to Due Process protections such as notice and a right to counsel. Landon v. Plasencia (Sup.Ct.1982).

§ 9-2.6 Expedited Removal for Aggravated Felonies

The INA gives the Attorney General the authority to provide for special expedited removal proceedings for aggravated felons.  INA § 238(a)(1). These special proceedings are to take place at the federal, state, or local correctional facility where the felon is incarcerated. INA § 238(a)(1). The initiation and completion of removal proceedings, as well as subsequent administrative appeals should be completed “to the extent possible” before the aggravated felon’s release from prison. INA § 238(a)(3). The intention of allowing special expedited proceedings for aggravated felons is to have the entire removal process occur while the non-citizen is serving his or her sentence.

In addition to providing for removal hearings in correctional facilities, the INA establishes two special procedures for removing “aggravated felons.” INA § 238(b) authorizes ICE to issue an administrative order of removal for any felon who is not a permanent resident. No formal hearing is required, but ICE must give the non-citizen notice and an opportunity to inspect the evidence and rebut the charges. Once an administrative removal order has been issued, the non-citizen has 14 calendar days to apply for judicial review. INA § 238(b). The second special procedure is judicial removal. INA § 238(c) allows district court judges to enter a removal order during the sentencing phase of a felony trial. The U.S. attorney prosecuting the case must obtain the consent of ICE and notify the non-citizen before requesting such an order. INA § 238(c). The provisions for judicial removal are rarely, if ever, used.

  § 9-3 RELIEF FROM REMOVAL

Non-citizens in removal proceedings may apply for one or more of the available types of discretionary relief, if applicable. If granted, discretionary relief eliminates or postpones the execution of the order of removal, and in some cases even confers lawful permanent residence. Some of the forms of relief discussed in this section (e.g., asylum, registry, and adjustment of status) are also available outside of removal proceedings, but are considered here only as they apply to non-citizens in removal proceedings.

Non-citizens must generally apply for discretionary relief during the removal hearing. See 8 C.F.R. § 240.11. Non-citizens may apply for discretionary relief after the hearing by moving to reopen proceedings, but such a motion will only be granted if the circumstances which form the basis of the relief arose after the removal hearing. 8 C.F.R. § 3.23(b)(v)(3).  Hence, a non-citizen who believes he or she is eligible for any type of discretionary relief must apply during the removal hearing or risk being denied the opportunity to apply.

In determining whether to grant the requested relief, the immigration judge undertakes a two-step process. First, the judge determines whether the non-citizen is eligible for the particular form of relief. The non-citizen has the burden of proving that he or she meets the statutory requirements. 8 C.F.R. § 240.8(d). Then, if the non-citizen has established eligibility, the judge has discretion to decide whether or not to grant the requested relief. The Supreme Court held in United States ex rel. Hintopoulos v. Shaughnessy (Sup.Ct.1957), that an immigration judge may, in the exercise of discretion, deny relief even when the non-citizen satisfies the basic criteria for eligibility. 

IIRIRA specifically bars judicial review of decisions to grant or deny discretionary relief. INA § 242(a)(2)(B)(i). Nevertheless, courts have permitted limited review of such decisions in some circumstances (see infra § 9-4.3(a)).

a. Voluntary Departure

District directors and other BBS officials may permit removable non-citizens to depart voluntarily from the United States at their own expense in lieu of facing removal proceedings. INA § 240B(a)(1); 8 C.F.R. § 240.25. This form of relief is commonly called “administrative voluntary departure.” In addition, immigration judges may permit a non-citizen to depart voluntarily at the non-citizen’s own expense during or after the conclusion of removal proceedings. INA § 240B(a),(b). An immigration judge may only grant voluntary departure during proceedings if the non-citizen admits removability. 8 C.F.R. § 240.26. Certain non-citizens are ineligible for voluntary departure, including those found removable under aggravated felony or terrorism grounds, and those who were previously permitted voluntary departure after being found inadmissible for being present without admission or parole. INA §§ 240B(a)(1), 240B(b)(1)(C), 240B(c). 

Both versions of the voluntary departure, i.e. voluntary departure in lieu of or prior to the completion of removal proceedings (INA § 240B(a)), and at the conclusion of removal proceedings (INA § 240B(b)), are strictly limited in time. A non-citizen who is granted permission to depart voluntarily in lieu of being subject to removal proceedings or during such proceedings must depart within 120 days (INA § 240B(a)(4)) and may be asked to post a bond. INA § 240B(a)(3). A non-citizen who is granted voluntary departure at the conclusion of removal proceedings must depart within sixty days (INA § 240B(b)(2)) and must post a bond. INA § 240B(b)(3).  Failure to depart, under either form of voluntary departure, results in a civil penalty, future inadmissibility for ten years, and ineligibility for several other forms of discretionary relief. 

Voluntary departure is one of the most sought‑after types of relief, especially when the non-citizen concedes removability. Voluntary departure avoids the stigma of removal, enables non-citizens to select their destinations, and most importantly, facilitates the possibility of immediate return to the United States. A non-citizen granted voluntary departure is not considered removed and, consequently, is not subject to the ten-year bar on re-entry after removal (see § 8-1.2(d)(2)). (The bar is twenty years for persons convicted of a second immigration offense and is permanent for persons convicted of an aggravated felony.) The non-citizen will, however, still be subject to the three- or ten-year bars for unlawful presence accumulated prior to the grant of voluntary departure, but surprisingly, a person who has been present in the U.S. for between 180 days and one year and is granted voluntary departure at the commencement of removal proceedings is not subject to the 3-year bar. See INA § 212(a)(9)(B).

In order to be eligible for voluntary departure in lieu of or during removal proceedings, the non-citizen must prove that he or she meets the statutory requirements. Hibbert v. INS (2d Cir.1977).  First, the non-citizen must demonstrate the ability to pay his or her own departure expenses. The government may, however, grant voluntary departure under § 240B(a) and pay the non-citizen’s expenses if it deems the non-citizen’s removal to be in the best interest of the United States. INA § 240B(a). Second, the INA provides that no individual who is removable under aggravated felony or terrorism grounds shall be entitled to voluntary departure in lieu of removal proceedings or before the completion of removal proceedings. INA § 240B(a)(1). 

The eligibility requirements for voluntary departure at the conclusion of removal proceedings are more extensive. To be entitled to voluntary departure at the conclusion of removal proceedings the non-citizen (1) must have been physically present in the U.S. for at least one year immediately before the date the notice to appear was served; (2) must have been a person of good moral character for the previous five-year period; (3) must not have been removable under aggravated felony or national security (including terrorism) grounds; and (4) must show by clear and convincing evidence that he or she has the means to depart and intends to do so. INA § 240B(b)(1). 

Good moral character is a prerequisite for several forms of relief from removal. The INA defines “good moral character” in the negative, by listing actions that preclude a finding of good moral character. See INA § 101(f). These actions include being a habitual drunkard, being convicted of certain crimes, deriving one’s income primarily from illegal gambling, and giving false testimony to receive immigration benefits.  See § 12-2.2(b)(4) for further discussion.

If the non-citizen meets the statutory requirements, he or she is eligible for voluntary departure. The final decision, however, lies with the immigration judge and is discretionary. A decision to deny relief is not subject to judicial review. INA §§ 240B(f), 242(a)(2)(B)(I). Further, the Secretary for Homeland Security may issue regulations that further limit eligibility for voluntary departure, and no court may review any such regulation.  INA § 240B(e).

b. Cancellation of Removal. 

IIRIRA consolidated several earlier forms of relief from removal into one single form: cancellation of removal. INA § 240A. There are two types of cancellation of removal, one of which is available only to permanent residents, while the other is available to both permanent and “nonpermanent” residents. The first type is available to any removable non-citizen who (1) has been lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the U.S. continuously for seven years after having been admitted in any status, and (3) has not been convicted of any aggravated felony”. INA § 240A(a). This provision roughly corresponds to a pre-IIRIRA form of relief known as “212(c) relief.” While IIRIRA removed some previous bars to this form of relief, it also significantly expanded the definition of “aggravated felony” which now disqualifies a broader range of non-citizens. See INA § 101(a)(43). As with most forms of relief, cancellation of removal is granted or denied at the discretion of the immigration judge.

The second type of cancellation of removal corresponds with the pre-IIRIRA “suspension of deportation.” INA § 240A(b) allows immigration authorities to cancel a non-citizen’s removal and adjust his or her status to that of a lawful permanent resident. Although this section refers to “nonpermanent” residents, it also applies to lawful permanent residents who do not meet the requirements of § 240A(a) and to undocumented non-citizens who satisfy the residency requirements. According to the Ninth Circuit in Fong v. INS (9th Cir.1962), the sole purpose of cancellation of removal is to ameliorate the harsh consequences of removal for those non-citizens who have been present in the United States for long periods of time.

To be eligible for cancellation of removal under § 240A(b), the non-citizen must (1) have been physically present in the United States for a continuous period of not less than 10 years, (2) have been a person of good moral character, (3) have not been convicted of any of the crimes or document offenses that would make him or her inadmissible or removable, and (4) not be subject to any of the security grounds of inadmissibility or removability. Further, the non-citizen must show that his or her removal would result in exceptional and extremely unusual hardship to his or her citizen or lawful permanent resident spouse, parent, or child. § 240A(b)(1). 

Congress has waived or reduced some of the requirements for cancellation of removal for persons who have been abused by a citizen or permanent resident spouse or parent. For such individuals, the physical presence requirement is reduced to three years. The non-citizen may qualify by showing that removal would cause hardship to him- or herself, instead of showing hardship to a spouse, parent, or child. The hardship requirement is the slightly lower standard of “extreme hardship,” rather than “exceptional and extremely unusual hardship.” INA § 240A(b).

The INA sets forth general eligibility rules that apply to both prongs of cancellation. INA § 240A(c). Non-citizens are ineligible for cancellation of removal if they are inadmissible or otherwise removable on national security grounds, fail to depart under a grant of voluntary departure, or are ordered removed after failing to appear at a removal proceedings.  See INA § 240A(c)(1)-(6). Again, non-citizens applying for cancellation of removal bear the burden of proving statutory eligibility. 8 C.F.R. § 240.8(d). 

INA § 240A(d) defines continuous physical presence for cancellation of removal. An absence of more than 90 days or aggregate absence of more than 180 days interrupts continuous presence. INA § 240A(d)(2).  Continuous residence or continuous physical presence ends when the non-citizen commits an offense that makes him or her removable, or when he or she is served with a Notice to Appear, whichever is earlier. INA § 240A(d)(1). In contrast, permanent resident status only ends when a final removal order is entered against the non-citizen. 8 C.F.R. § 1.1. In the case of battered spouses and children, an absence in excess of the 90/180 day limits will not interrupt continuous presence if the non-citizen can show that the absence was related to the battery or cruelty.

Before IIRIRA added these definitions to the statute, it was unclear what circumstances would interrupt physical presence.  In INS v. Phinpathya (Sup.Ct.1984) the Supreme Court construed the continuous physical presence requirement of the precursor to INA § 240A strictly to forbid relief for a non-citizen who had traveled for three months outside the United States. The Court noted that Congress had changed the statute from “continuous residence” to limit the scope of discretionary relief from removal.  Following the strict holding of Phinpathya, the 5th Circuit denied suspension of deportation to two otherwise eligible non-citizens who had been continuously physically present in the United States for twelve years except for a one night stay in Mexico. Sanchez-Dominguez v. INS (5th Cir.1986).  The hardships resulting from Phinpathya led Congress to overturn the Court’s holding by amending the statute to allow for “brief, casual, and innocent” absences from the United States which “did not meaningfully interrupt the continuous physical presence.”

To qualify for cancellation of removal under § 240A(b), the non-citizen must show that his or her removal would cause “exceptional and extremely unusual hardship” to a citizen or permanent resident spouse, child, or parent. INA § 240(b)(1)(D). Considering a precursor to § 240, the Supreme Court held that hardship to other relatives does not satisfy this requirement, even if the non-citizen’s relationship to that relative is the “functional equivalent” of a parent‑child relationship. INS v. Hector (Sup.Ct.1986). A hardship claim must be supported by affidavit or other evidentiary material. The “exceptional and extremely unusual” hardship standard is extremely difficult to satisfy. The BIA has held that the claimed hardship must be substantially different from that normally expected from the removal of a non-citizen with close family in the United States. In re Monreal (BIA 2001). In Matter of Andazola-Riva (BIA 2001), the BIA found that the financial and educational detriment to a non-citizen’s two citizen children did not meet this standard, even though the non-citizen’s status as a single mother and her lack of family in the country to which she would be removed made her case unusual.

The previous suspension of deportation statute allowed immigration judges to consider hardship to the non-citizen, as well as family members. Under that statute, the BIA used a multi-factor test for hardship, considering the non-citizen’s age, family ties in the U.S. and abroad, length of residence in the U.S., condition of health, economic and political conditions in the non-citizen’s country, financial status, the possibility of adjustment of status, the non-citizen’s special assistance to the U.S., immigration history, and position in the community. Matter of Anderson (BIA 1978). In Matter of O-J-O- (BIA 1996), the BIA held that the removal of a twenty-four-year-old Nicaraguan who lived in the U.S. since the age of thirteen would constitute extreme hardship even though he lacked close family in the U.S., because he lived in the U.S. during critical formative years and had become assimilated to life in the U.S. Congress feared that this BIA decision would have a weakening impact on the extreme hardship standard. Accordingly, IIRIRA increased the required showing. 

ICE and immigration courts exercise considerable discretion in determining what constitutes extreme hardship. INS v. Jong Ha Wang (Sup.Ct.1981). The IIRIRA made this discretion unreviewable. INA § 242(a)(2)(B). The immigration court’s discretion allows it to deny a non-citizen’s motion to reopen a case for the purpose of requesting cancellation of removal, even if the non-citizen can show that intervening circumstances have given rise to prima facie eligibility for relief. INS v. Rios-Pineda (Sup.Ct.1985); INS v. Abudu (Sup.Ct.1988). In Rios-Pineda, the only change in circumstances was the passage of enough time for the petitioner to meet the seven-year residence requirement. The Court reasoned that the immigration courts can “legitimately avoid creating a further incentive for stalling by refusing to reopen [cancellation of removal] proceedings for those who became eligible for such [cancellation] only because of the passage of time while their meritless appeals dragged on.” INA § 240A now stops the accumulation of time in residence when a Notice to Appear is served. INA § 240A(d).

When an immigration judge grants adjustment to permanent resident status based on cancellation of removal, the non-citizen is admitted to the United States as a permanent resident as of the date of the cancellation of removal or adjustment of status. INA § 240A(b)(3). The number of adjustments to permanent resident status based on such cancellations is limited to 4,000 per year. Id. The annual limitation upon adjustments evoked considerable debate when in February 1997, seven months before the fiscal year, the INS had almost reached the 4,000 annual cap on adjustments.  The Office of the Chief Immigration Judge instructed immigration judges to reserve decisions in any case in which cancellation applications might otherwise be granted until a resolution could be reached within the Department of Justice.  The demand for cancellation of removal was reduced in 1997 when the President signed the Nicaraguan Adjustment and Central American Relief Act (NACARA) which removed certain Cubans and Nicaraguans from the statutory cap, along with some Salvadorans, Guatemalans and Eastern Europeans.

Current regulations authorize judges to reserve decisions on requests for cancellation made after the annual cap has been reached. See 8 C.F.R. § 240.21(c). The immigration judge may deny cancellation of removal if the applicant does not meet the statutory requirements or if the applicant instead qualifies for asylum or adjustment of status.  Otherwise, the judge must decide whether to grant the application or deny it as a matter of discretion, but may not release the decision until the start of the next fiscal year, when additional grants are available.

c. Section 212(c) Relief

Before the AEDPA and IIRIRA amendments, INA § 212(c) granted relief to lawful permanent residents who had resided in the U.S. for at least seven years. This form of relief was available even to those who had committed crimes that made them removable. Many permanent residents who committed crimes entered plea bargains with the expectation that they could use this provision to avoid removal. With IIRIRA, this statute was repealed even for those whose convictions predated IIRIRA. In INS v. St. Cyr (Sup.Ct.2001), the Court ordered the INS to allow persons who entered plea agreements prior to April 1997, to apply for § 212(c) relief.  The Court found that Congress had not clearly indicated an intent for the AEDPA amendments to apply retroactively to removal proceedings commenced before that statute’s enactment. Further, the Court found that applying the new rules to persons who entered plea agreements while § 212(c) was still in effect could create a constitutional problem by attaching unexpected consequences to criminal conduct.

The circuit courts have since limited the applicability of St. Cyr. In Chambers v. Reno (4th Cir.2002), the Fourth Circuit found that a non-citizen who was deported after being convicted of armed robbery at trial while § 212(c) was still in effect was not entitled to this form of relief because he had not relied on the availability of relief in deciding to go to trial rather than to plead guilty. Applying similar reasoning, the Ninth Circuit in United States v. Velasco-Medina (9th Cir.2002), found that a non-citizen who had been ordered removed several years after pleading guilty to burglary was not entitled to § 212(c) relief because he was not removable at the time he pleaded guilty. Velasco-Medina only became removable after IIRIRA changed the definition of aggravated felony to include his crime. Since he was not removable at the time of his guilty plea, the court found that he had not relied on the availability of relief in pleading guilty.

Under proposed rules (see 67 Fed. Reg. 52627-33), lawful permanent residents with at least seven years residence in the United States who pleaded guilty to crimes before April 1, 1997, may apply for section 212(c) relief. Relief is barred, however, if the non-citizen is subject to removal on national security grounds, is unlawfully present in the United States after a previous immigration violation, was convicted of a firearms offense, or served five or more years for an aggravated felony offense. The proposed rule would give non-citizens with a final removal order 180 days after publication of a final rule to apply for relief.

d. Adjustment of Status. 

Still another type of discretionary relief for which non-citizens may apply during the removal proceedings is adjustment of status. Adjustment relieves persons who are eligible for permanent residence from the hardship and expense of going abroad and enduring the long wait for an immigrant petition to be processed. The INA permits immigration authorities to adjust an eligible non-citizen’s status to that of a lawful permanent resident if an immigrant visa is immediately available to him or her at the time his or her application is filed. INA § 245(a).

Two provisions of the INA substantially limit the availability of adjustment of status as a means of avoiding removal. With the exception of those married to U.S. citizens, section 245(c) requires non-citizens applying for adjustment of status to have maintained legal immigration status since admission to the U.S. and to be in status on the date of filing the application. Consequently, most non-citizens who accept unauthorized employment prior to filing an application for adjustment of status are statutorily ineligible to adjust their status. INA § 245(c). Section 245(k), however, exempts non-citizens adjusting status with an employment-based immigration petition from this requirement if they have not accumulated more than 180 days of unauthorized presence.  Section 245(e) makes a non-citizen seeking an immigrant visa on the basis of a marriage entered into during removal proceedings ineligible for adjustment of status unless he or she can show the marriage was entered in good faith.  INA § 245(e).

In order to be eligible for adjustment of status, non-citizens must show that they meet the statutory requirements.  First, they must show that they have been inspected and admitted into the United States. Hence, according to the BIA in In re Woo (1966), non-citizens who enter illegally or on the basis of a willfully false claim of United States citizenship may not adjust their status. Second, applicants must show that they are eligible for a permanent resident visa. Since non-citizens applying for adjustment of status are considered to be seeking admission, they must not be inadmissible under any of the categories of INA § 212(a). Third, and most importantly, each applicant must show that there is an immigrant visa immediately available to him or her at the time the application is filed. INA § 245(a). After IIRIRA, adjustment of status is one of the remedies unavailable for ten years to those non-citizens who fail to comply with the terms of their voluntary departure orders. INA §§ 240(b)(7), 240B(D).

Non-citizens who have stayed in the U.S. after the expiration of their immigration status (“overstays”) and persons who entered without being admitted were previously able, upon the payment of $1,000, to apply for the adjustment of status to that of a lawful permanent resident, if an immigrant visa was available and no other bar applied. INA § 245(i). Section 245(i), which allowed overstays and entrants without inspection to avoid inadmissibility bars, expired on April 30, 2001, and has not yet been renewed by Congress. Those non-citizens who had an immigration petition filed on or before the date the provision expired are, however, still eligible to adjust status under § 245(i).

e. Asylum. 

Unlike cancellation of removal or adjustment of status, asylum does not guarantee a non-citizen permanent residence in the United States. (See chapter 10.) Asylum is the granting of temporary residence and the right to work in the United States for the period of time that the non-citizen is entitled to refugee status. According to the INA, “an alien physically present in the United States or who arrives in the United States, irrespective of such alien’s status, may be granted asylum in the discretion of the [Secretary for Homeland Security] if the [Secretary] determines that such alien is a refugee....” INA § 208(a). Hence, a non-citizen may apply for asylum as a form of discretionary relief during a removal hearing, so long as he or she meets the requirements of refugee status. The INA defines “refugee” to mean “any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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. . . .” INA § 101(a)(42)(A). Asylum is not available, however, to persons who have participated in persecution of others, those who have committed particularly serious crimes, and those who present a danger to the United States. INA § 208(b)(2).

Non-citizens must apply for asylum within one year of entering the United States, unless they can demonstrate the existence of changed circumstances that materially affect their eligibility for asylum. INA § 208(a)(2). Non-citizens may present an application for asylum during or after the removal hearing, if within the time limit. 8 C.F.R. § 208.4.  If the non-citizen applies after the hearing, however, he or she must reasonably explain the failure to apply during the hearing. 8 C.F.R. § 208.4. The non-citizen and the service counsel present evidence relating to the request for asylum.  If the immigration judge grants the requested asylum, the non-citizen is admitted for one year. The non-citizen’s asylum status may be terminated during that year if circumstances change such that he or she is no longer a “refugee” under the provisions of the INA. INA § 208(c)(2).

After one year, any non-citizen admitted under the provisions of the Refugee Act of 1980 (1) whose admission has not been terminated, (2) who has been physically present in the United States for at least one year, and (3) who has not acquired permanent resident status must report to the Bureau of Citizenship and Immigration Services for inspection.  INA § 209(a). After this inspection or after a hearing in front of an immigration judge, the BCIS will admit the non-citizen as a lawful permanent resident if he or she is otherwise admissible as an immigrant. Id. No more than 10,000 asylees per year may adjust status under this provision. INA § 209(b).

f. Temporary Protected Status 

Temporary Protected Status (TPS) is similar in some respects to asylum. INA § 244 authorizes the Secretary for Homeland Security to provide temporary protection to nationals of countries experiencing civil upheaval or natural disasters. The Secretary may designate a country for TPS in case of ongoing war or armed conflict, natural disaster, or other extraordinary conditions that prevent the safe return of that country’s nationals.  INA § 244(b)(1). Nationals of a designated country must then apply to the BCIS individually for TPS. If an individual in removal proceedings is eligible for TPS, the immigration judge will close the case and direct the individual to apply for TPS. If the BCIS grants the relief, this status protects such individuals from removal until the Attorney General ends that country’s designation. 

Unlike asylum, TPS does not lead to lawful permanent residence. It does, however, confer lawful nonimmigrant status on individuals to whom it is granted. Persons granted TPS may change to another nonimmigrant classification or adjust to permanent residence status if they qualify on some other ground (such as marriage to a U.S. citizen). See §§ 10-2.4, 10-2.5 for further discussion.

Another form of relief related to asylum is the relief identified by INA § 241(b)(3)(A) as “restriction on removal.” Unlike asylum, which is granted only at the BCIS’ discretion, restriction on removal must be granted to anyone who qualifies for it. Matter of McCullen (BIA 1980). The INA provides that a non-citizen may not be removed to a country if his or her “life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” INA § 241(b)(3)(A). This relief was previously known as “withholding of deportation” and immigration officials and lawyers often continue to use the phrase “withholding of removal” for this relief.

Although the criteria for restriction on removal are similar to the grounds for asylum, there are a few significant differences between the two forms of relief. Restriction on removal only prevents removal to the country where the non-citizen would be in danger and does not prevent removal to a third country. In practice, however, non-citizens who are granted restriction on removal are almost never removed from the U.S. The Supreme Court held in INS v. Stevic (Sup.Ct.1984) that a non-citizen seeking to avoid removal pursuant to this section of the INA must establish a clear probability of persecution. This is a higher standard of proof than the “well-founded” fear required to claim asylum. Asylum leads within one year to permanent residence; restriction on removal, however, only grants the non-citizen temporary residence in the United States and only for so long as the non-citizen’s life or freedom is threatened. An application for asylum is automatically construed as a concurrent application for restriction on removal; if the request for asylum is denied, the immigration judge must consider whether the applicant is instead entitled to withholding of removal. 8 C.F.R. § 208.3(b).

Certain non-citizens are ineligible for the relief of “restriction on removal”: those applicants who (1) assisted in Nazi persecution or engaged in genocide; (2) assisted in the persecution of an individual because of the individual’s race, religion, nationality, membership in a particular social group, or political opinion; (3) are a danger to the community of the U.S., having been convicted by a final judgment of a particularly serious crime; (4) committed a serious nonpolitical crime before entering the U.S.; or (5) otherwise represent a threat to the national security.  INA § 241(b)(3)(B).

The BIA previously held that a non-citizen under exclusion proceedings could not apply for restriction on removal because  he or she was not “within the United States” as required by the previous wording of the Act. In re Cenatice (BIA 1977). INA § 241(b)(3) now allows non-citizens to apply for restriction on removal as a relief from removal for inadmissibility as well as for other grounds.

h. Stay of Removal

Non-citizens may apply for a stay of removal by submitting Form I-246 to the immigration office in their district. Such a stay is temporary and is granted at the discretion of the district director.  Since the mere filing of a motion to reopen does not automatically stay removal, the regulations authorize non-citizens to couple a motion to reopen with a request for a stay to permit a decision on the motion. 8 C.F.R. § 3.8. Although a stay of removal is commonly used in connection with a motion to reopen or reconsider, non-citizens under removal orders may also move for a stay pending an application for permanent residence and in other exceptional circumstances.  A pending application for immigration status, however, does not entitle a non-citizen to a stay of removal; instead, the stay remains a discretionary matter. Armstrong v. INS (9th Cir.1971). If granted, the district director may impose such conditions as he or she decides are appropriate and must set a specific time limit for the stay. An application for a stay does not relieve the applicant from strict compliance with an outstanding order of removal.  Id. The district director’s decision on the application is not appealable, although the non-citizen may renew the application before the BIA. Id.

i. Parole

When a non-citizen seeking admission to the U.S. is not clearly qualified for admission, the inspecting immigration officer may elect to release the non-citizen on parole pending further investigation.  8 C.F.R. § 235.2. Immigration authorities may also grant parole for humanitarian reasons or reasons of public interest. INA § 212(d)(5). Parole allows a non-citizen to travel within the United States while remaining entitled only to the same procedural rights in removal proceedings as a person who is just arriving at the frontier. A person who is admitted on parole is not officially “admitted” and is not entitled to the greater procedural rights in a later removal proceeding of a person who has been inspected and accepted.

In the past, parole was sometimes granted to groups of non-citizens en masse, as an alternative to asylum or as a relief analogous to temporary protected status. IIRIRA ended this practice by requiring each parole decision to be rendered on a case-by-case basis.  INA § 212(d)(5)(A).

The concept of parole has been extended to include “advance parole” where a non-citizen in the U.S. who wishes to leave, but who will not possess a status entitling him or her to re-admission, may be issued advance parole before departing, thus ensuring a successful return to the U.S. Advance parole is most commonly granted to persons with pending applications for adjustment of status. Advance parole does not remove any applicable grounds of inadmissibility apart from the lack of a valid immigration visa. Consequently, a non-citizen who departs from the U.S. after committing a crime that constitutes a ground of inadmissibility, or who has accumulated more than 180 days of unlawful presence in the U.S., may still be detained at the border as an inadmissible non-citizen. See Balogun v. Attorney General (11th Cir.2002). To overcome this problem, the non-citizen must apply for a visa at a consulate outside the United States and request a waiver of inadmissibility. 72 Interp.Rel. 1842.

j. Registry

Registry is available to non-citizens who entered the United States prior to January 1, 1972. Registry creates a record of lawful admission for permanent residence when such a record is not otherwise available (usually because the non-citizen entered the U.S. without inspection).  INA § 249. In addition to proving that he or she entered prior to the specified date, the non-citizen must also show that he or she has been a continuous resident of the United States, is a person of good moral character, and is otherwise eligible for citizenship. Id. The sole and limited purpose of registry is to ameliorate the harsh consequences of removal for those persons who have been long-term residents of the United States. AEDPA amended Section 249(d) to make a non-citizen “who has engaged, is engaged, or at any time after admission engages in any terrorist activity” ineligible for registry.  INA § 249(d). Further, according to IIRIRA, non-citizens who have failed to appear at their removal hearings or to comply with their voluntary departure orders are ineligible for registry for ten years. INA §§ 240(b)(7), 240(B)(D).

§ 9-3.2 Estoppel

Occasionally, the conduct of the United States government is a substantial cause of a non-citizen’s removability, such as when a non-citizen relies on false information given by a government employee. In these cases the courts have been quite reluctant to estop the government from removing the non-citizen. Despite opportunities to do so, however, the Supreme Court has not completely ruled out the doctrine of estoppel in removal cases. In holding that a lengthy delay on the part of the INS in processing the non-citizen’s adjustment of status application falls short of affirmative misconduct in INS v. Miranda (Sup.Ct.1982), the Court was not required to reach the question of whether affirmative misconduct in a particular case would estop the government from enforcing the immigration laws.

Similarly, in most cases where the estoppel issue has been addressed by a lower court the decision has turned on whether affirmative misconduct occurred. The courts usually have held that there was no affirmative misconduct and therefore no estoppel was appropriate. See Moosa v. INS (5th Cir.1997). A few lower courts, however, have held the government was estopped from removing a non-citizen as a result of the government’s affirmative misconduct. In McLeod v. Peterson (3d Cir.1960), the non-citizen would have complied with the continuous presence requirement for cancellation of removal had the INS not erroneously informed him that he was ineligible for nonquota status and advised him that his voluntary departure from the United States would aid his wife in making the necessary application for his legal re‑entry. The Third Circuit Court of Appeals ignored the non-citizen’s departure and held that he had complied with the requirement of five years presence. In Corniel-Rodriguez v. INS (2d Cir.1976), U.S. consular officers in the Dominican Republic violated 22 C.F.R. § 42.122(d), by failing to warn a non-citizen who was issued a visa as the unmarried minor child of a special immigrant that she would forfeit her exemption from the labor certification requirement for entry if she married before admission to the United States.  This violation of a regulation by the consular officers precluded removal of the non-citizen despite her marriage three days before her departure from the Dominican Republic.

The estoppel doctrine also has been addressed in immigration cases outside the removal context. See, e.g., Montana v. Kennedy (Sup.Ct.1961) (refusal of a U.S. consular officer to issue a passport to a pregnant U.S. citizen to enable her to re‑enter the U.S., at a time when the U.S. did not require passports for citizens to return to the U.S., was not misconduct such that the government was estopped from denying the child’s U.S. citizenship when born abroad); INS v. Hibi (Sup.Ct.1973) (the government’s failure after World War II to publicize fully the statutory right of Filipino servicemen to apply for naturalization and to provide a naturalization representative in the Philippines at all times during the period of eligibility did not rise to the level of affirmative misconduct); INS v. Pangilinan (Sup.Ct.1988) (Supreme Court rejected applicability of estoppel doctrine to claims about the same situation in the Philippines as in Hibi); Podea v. Acheson (2d Cir.1950) (non-citizen did not lose his U.S. citizenship by serving in a foreign army and swearing allegiance to a foreign sovereign after an erroneous State Department ruling that the alien had already lost his U.S. citizenship because of certain prior acts). 

§ 9-4 APPEALS

The INA provides for administrative appeals from decisions of an immigration judge, and, in limited cases, for judicial review of administrative orders. The IIRIRA significantly restricted both the circumstances in which judicial review is available and the scope of such review.

§ 9-4.1 Motion to Reopen or Reconsider

A non-citizen may move to reopen or to reconsider the decision of the immigration judge by submitting Form I-328 or the judge may do so on his or her own motion. 8 C.F.R. § 3.23(b)(ii). A motion to reopen is based on the existence of material facts that were not available at the time of the removal hearing. INA § 240(c)(6). The motion must state the new facts and provide evidence to support them. 8 C.F.R. § 3.23. A motion to reconsider is based on errors of law or fact in the removal order. INA § 240(c)(5).

Non-citizens have thirty days after a final administrative order of removal to file a motion to reconsider. INA § 240(c)(5). The deadline for filing a motion to reopen is ninety days after a final administrative order of removal. INA § 240(c)(6). There is no time limit on filing a motion to reopen if the motion is based on a request for asylum due to changed country conditions or if the basis of the motion is to apply for relief as a battered spouse or child. INA § 240(c)(6).

A motion to reopen for the purpose of providing the non-citizen an opportunity to apply for discretionary relief that was available during the hearing will be denied unless the non-citizen’s right to make the application was not fully explained at the time of the hearing.  8 C.F.R. § 3.23. The immigration judge may also deny the motion if the non-citizen has not established a prima facie case for the underlying substantive relief sought. INS v. Abudu (Sup.Ct.1988). Likewise, in regard to a belated application for asylum, the judge may hold that the non-citizen has not reasonably explained his or her failure to apply for asylum prior to completion of the initial removal proceedings, as required by 8 C.F.R. § 208.4. Abudu.  Furthermore, in cases requesting discretionary relief (asylum, cancellation of removal, and adjustment of status, but not withholding of removal), the judge may ignore the above concerns and simply decide that even if the application were properly asserted, the non-citizen is not entitled to the discretionary relief. Id. The appropriate standard of review of such denials on any of these grounds is abuse of discretion. The Court in Abudu stressed that motions to reopen are disfavored in removal proceedings because “[g]ranting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case.” Id. 

Filing a motion to reconsider or reopen will not automatically stay the execution of a pending removal order. The non-citizen must therefore request a stay of removal when filing such a motion.

§ 9-4.2 Administrative Appeals

An appeal taken from a removal hearing is heard by the Board of Immigration Appeals (BIA). 8 C.F.R. § 3.1(b)(2). The BIA is supervised by the Department of Justice and its members are appointed by the Attorney General. 8 C.F.R. § 3.1(a)(1). The BIA has jurisdiction over appeals from immigration judges’ decisions concerning discretionary relief; administrative fines; petitions for immigrant status; bond, parole, or detention of non-citizens; rescission of an adjustment of status; asylum; and Temporary Protected Status. 8 C.F.R. § 3.1(b). 

For many years, the BIA heard all cases in three-member panels. Although the size of the board was increased from twelve members in 1995 to twenty-three in 2002, it faced an increasing backlog of cases. A 1999 rule attempted to reduce this backlog by permitting individual Board members to affirm immigration judges’ rulings summarily in certain circumstances. 64 Fed.Reg. 56135. Another rule, in 2002, made single-member review the standard operating procedure, with panel review reserved for cases that present novel or complex issues. 67 Fed.Reg. 54878. En banc review is available for cases of particular importance. 8 C.F.R. § 3.1(a)(5). The 2002 rule also reduced the size of the board to eleven members. 

The powers conferred on the Board by the Attorney General include the right to dismiss summarily any appeal from removal proceedings if the party fails to substantiate the basis for the appeal. 8 C.F.R. § 3.1(d)(2). The Board may also dispose of a case by remanding it to the immigration judge for additional factual development, or in rare cases, by referring the case to the Attorney General for a decision. 8 C.F.R. § 3.1(d) & (h). Any decision made by the Board is administratively final although non-citizens may seek judicial review in some circumstances (see infra § 9-4.3). 8 C.F.R. § 3.1(d)(2). The Board bases its decisions on the record of the removal hearing, briefs submitted by counsel, and oral argument. 8 C.F.R. §§ 3.1(e), 3.3(c), 3.5. Oral arguments are heard only if requested by the petitioner. 8 C.F.R. § 3.1(e). The BIA formerly reviewed both issues of fact and law de novo, but the 2002 rule that reorganized the Board also provided that immigration judges’ findings of fact could only be reversed if clearly erroneous. 67 Fed.Reg. 54878. 

Execution of a removal order is automatically stayed during any appeal to the BIA. 8 C.F.R. 1003.6. To prevent abuse of this provision, INS regulations provide for sanctions against attorneys who file frivolous appeals. 8 C.F.R. § 3.1(d)(iii).

The IIRIRA eliminated review of many immigration decisions, including denials of discretionary relief or asylum, removal orders based on criminal offenses, and custody determinations. INA § 242. The circuit courts have, however, engaged in limited review of some “unreviewable” removal decisions for the purpose of determining whether they have jurisdiction. See, e.g., Guerrero-Perez v. INS (7th Cir.2001). For example, although the court is barred from reviewing a removal order based on an aggravated felony conviction, it may independently determine whether the underlying crime was an aggravated felony.

The IIRIRA also prohibited judicial review of any decision by the Attorney General to “commence proceedings, adjudicate cases, or execute removal orders.” INA § 242(g). The Supreme Court construed § 242(g) narrowly as prohibiting review only of those three discretionary actions. Reno v. American-Arab Anti-Discrimination Committee (Sup.Ct.1999). Section 242(g) would not, therefore, preclude review of other decisions during the removal process, such as the decision to open an investigation, reschedule a hearing, or refuse reconsideration of an order.

In addition to limiting the availability of judicial review, the IIRIRA limited the scope of such review. The court of appeals must decide the petition on the basis of the administrative record and may not take any new evidence. INA § 242(b)(4)(A). Further, administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude otherwise. INA § 242(b)(4)(B). CBP’s decision that a non-citizen is inadmissible and BCIS decisions not to grant asylum are also conclusive unless manifestly contrary to law. INA § 242(b)(4)(C), (D).

Prior to 1996, the INA specifically granted non-citizens held in custody the right to challenge their removal through habeas corpus proceedings. INA § 106(a)(10).  The AEDPA repealed this provision. Then the IIRIRA added INA § 242(b)(9), described as a “zipper clause,” which states that no judicial review of removal decisions is available except as provided under § 242. These amendments called into question the continuing availability of habeas corpus for non-citizens.  In INS v. St. Cyr (Sup.Ct.2001), the Supreme Court found that non-citizens subject to removal were still entitled to bring a habeas corpus action under 28 U.S.C. § 2241. The Court found that Congress had not indicated a clear intent to eliminate all habeas jurisdiction. Id. Further, the Court determined that a reading of the INA that precluded habeas corpus review would raise a constitutional issue in the case of criminal non-citizens, who have no other means to challenge their removal.  Id.

Although St. Cyr focused on the availability of habeas corpus to non-citizens subject to removal on criminal grounds, the courts have since found that other non-citizens have a right to habeas review if direct judicial review of a removal order is not available. See, e.g., Liu v. INS (2nd Cir.2002). Regardless of the grounds for removal, habeas corpus review is limited to claims of constitutional or statutory error; a non-citizen may not use such proceedings to challenge the immigration judge’s exercise of discretion. Gutierrez-Chavez v. INS (9th Cir.2002). 

For inadmissible non-citizens, habeas corpus is the only available means to challenge a removal order. The scope of such proceedings is limited to determining whether the petitioner is an alien, whether the petitioner was subject to expedited removal, and whether he or she is a permanent resident, refugee, or asylee. INA § 242(e). The non-citizen may not use habeas corpus to challenge CBP’s finding that he or she is inadmissible.  Brumme v. INS (5th Cir.2001).

c. Procedural Requirements

The Supreme Court in Foti v. INS (Sup.Ct.1963) noted that the fundamental purpose behind the petition for review is to reduce the likelihood that the process of judicial review will be used by persons subject to removal to forestall departure by dilatory practices in the courts. The INA sets forth specific requirements for granting a petition for review. Non-citizens have thirty days after an administratively final order of removal to file a petition for review with the Court of Appeals for the circuit in which the removal hearing was conducted. INA §§ 242(b)(1).  The petition does not automatically stay removal. INA § 242(b)(3)(b). On a petition for review, the court may review both the finding of removability and the denial of any motion to reopen.

Appeals may only be taken from a final order of removal. INA § 242(a)(1). Further, the INA authorizes judicial review only after the non-citizen has exhausted all available administrative remedies.  INA § 242(d)(1). A federal court may review a final administrative order of removal only if another federal court has not decided the validity of the administrative order, unless the petition for review presents grounds that could not have been presented in the earlier proceeding or the remedy provided in that proceeding was inadequate or ineffective to test the validity of the administrative order. INA § 242(d)(2).

Immigration decisions made outside the context of removal proceedings are not subject to review. See Cheng Fan Kwok v. INS (Sup.Ct.1968). Kwok sought review of an INS district director’s denial of relief from removal, but the Court found that it lacked jurisdiction because the director’s decision was made after Kwok had been ordered removed in proceedings.

Judicial review is available, however, to challenge the constitutionality of immigration procedures other than removal hearings. INS v. Chadha (Sup.Ct.1983). Chadha, a non-citizen who had been ordered removed, challenged the House of Representatives' authority to veto an immigration judge's suspension of deportation (now a form of cancellation of removal). Congress argued that the one-House veto authorized by the INA was not a removal proceeding and that the Court of Appeals therefore lacked jurisdiction to review its constitutionality. The Court interpreted the term "final order" to encompass all matters "on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing." Because Chadha's removal was contingent upon the validity of the challenged veto and because Chadha was directly attacking the removal order, the Court of Appeals had jurisdiction.

In Mohammadi-Motlagh v. INS (9th Cir.1984), the Ninth Circuit confirmed that the Chadha decision did not signify a retreat from the narrow construction of § 242 (former INA § 106) adopted in Cheng Fan Kwok. The Court of Appeals in Mohammadi-Motlagh found no jurisdiction to review the denial of the non-citizen’s request for a school transfer because, in contrast to the purely legal question presented in Chadha, the non-citizen’s challenge of the district director's decision raised factual questions as to whether discretion was properly exercised.

Courts may permit an exception to the requirement of exhausting all administrative remedies if an administrative appeal would be futile because the BIA is absolutely bound by immigration regulations and could not help but render the same decision as the immigration court. See Bak v. INS (3d Cir.1982). The plaintiffs in Bak sought review of an immigration judge’s decision not to reopen proceedings and permit them to apply for asylum. They did not appeal the decision to the BIA, claiming that it would be bound by immigration regulations to reach the same decision.  In their case, the court found that the BIA had discretion to overturn the judge’s decision and denied the appeal. Another potential exception to the exhaustion requirement is an allegation of “a wholesale, carefully orchestrated program of constitutional violations.” Haitian Refugee Center v. Smith (5th Cir.1982). In Haitian Refugee Center, 4,000 Haitians claimed they had been denied Due Process and Equal Protection by accelerated removal procedures instituted to achieve the mass removal of Haitian nationals seeking political asylum in the United States. The Fifth Circuit decided that a pattern or scheme by immigration officials to violate the constitutional rights of non-citizens is independently reviewable in the district court under its federal question jurisdiction. The court, however, stressed the uniqueness of the case in warning that its holding was not to be construed as permitting a constitutional challenge in the district court based on a procedural ruling in a removal case with which a non-citizen is dissatisfied.

§ 9-5 POST-REMOVAL DETENTION

When a non-citizen is ordered removed, the INA provides that immigration officials “must” remove the individual from the United States within a ninety-day removal period. The removal period begins when the removal order becomes administratively final, when a reviewing court confirms the order, or when the non-citizen is released from detention after serving a criminal sentence. INA § 212(a). Persons who have been ordered removed are required by statute to comply with BBS efforts to achieve their repatriation and can be subject to criminal penalties for willful failure to do so. INA § 243(b). If ICE is not able to remove a non-citizen within ninety days, it may grant the non-citizen supervised release. INA § 251(a)(3). Non-citizens who are removable on criminal or national security grounds, or because they violated the conditions of their nonimmigrant status, as well as non-citizens who are inadmissible for any reason, may be detained beyond the removal period.  The INA does not place any limit on how long such individuals may be detained beyond the removal period.

In some cases, it may be nearly impossible to effect a non-citizen’s removal. Some countries do not accept the return of their nationals from the United States. Other countries may delay issuing or refuse to issue required travel documents. Some removable non-citizens are stateless, and as a consequence no country will accept them. In such cases, a non-citizen could theoretically remain in detention indefinitely. The Supreme Court, in Zadvydas v. Davis (Sup.Ct.2001), found that indefinitely detaining non-citizens who had been lawfully admitted to the United States without a bail hearing would potentially violate their Due Process rights. To avoid the constitutional problem, the Court read into the INA a presumptive six-month limit on detention, after which non-citizens must be released if their removal does not appear likely in the reasonably foreseeable future. Zadvydas v. Davis (Sup.Ct.2001). In dicta, the Court stated that its holding would not apply to inadmissible non-citizens who are detained when attempting to enter the U.S.

After Zadvydas, the Attorney General promulgated regulations requiring immigration officials to grant a hearing to any removable non-citizen who has been detained for six months or more.  Such non-citizens are entitled to supervised release unless they have a highly contagious disease, their release would be adverse to U.S. foreign policy, they were removed on national security grounds or present a threat to national security, or they are determined to be especially dangerous. 8 C.F.R. § 241.14. In these hearings, the non-citizens have the burden of showing that they have complied with efforts to execute the removal order and that there is no significant likelihood of removal in the reasonably foreseeable future. 8 C.F.R. § 241.13. These regulations do not apply to inadmissible non-citizens, including those persons who have been detained after violating conditions of immigration parole (see infra § 9-5.1(i)). 66 Fed. Reg. 56,967.

Since Zadvydas, two circuit courts have considered whether the indefinite detention of inadmissible non-citizens raises the same constitutional concerns. The Seventh Circuit, in Hoyte-Mesa v. Ashcroft (7th Cir.2001), found no violation of due process where the non-citizen was receiving annual reviews under a special parole program for Cuban refugees. The Ninth Circuit, however, in Xi v. INS (9th Cir.2002), extended the Zadvydas holding to inadmissible non-citizens, finding that they are also entitled to a hearing if removal is not reasonably foreseeable after six months.