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Criminal Justice Magazine
Winter 2002
Volume 18 Issue 1

Immigration Law for Criminal Lawyers: Overview

By Robert James McWhirter

Robert James McWhirter is an assistant federal public defender for the District of Arizona with a specialty in criminal immigration law. He also teaches seminars on criminal immigration law and the consequences of criminal convictions for the Criminal Justice Act, sponsored by the Administrative Office of the U.S. Courts.

Editor’s Note: What follows is an excerpt from the Criminal Justice Section’s popular new book The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers. Due to space constraints, appendices, a table of cases, and other useful material are not included. For information on the author, a listing of the table of contents, or to order the book, log on to www.ababooks.org.

This overview of immigration law begins with a word of warning to the criminal lawyer: immigration law can be harsh, from our point of view, with very few procedural protections. Over the years, this has worsened, especially with the 1996 Anti-Terrorism Act and Effective Death Penalty (Terrorism Act) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). Calls for the reform of this recent "reform" have as yet gone unheeded. ( See, e.g., Anthony Lewis, The Quality of Mercy, N.Y. Times, Feb. 27, 1999 at A31; Howard F. Chang, The Economic Effects of Immigration and the Case for Liberalizing Reforms, 4:11 Bender’s Immigr. Bull. 497 (June 1, 1999); Jason H. Ehrenberg, A Call for Reform of Recent Immigration Legislation, Mich. J. Reform 195 (Fall 1998); Elizabeth Hull, The Unkindest Cuts: The 1996 Welfare Reform Act’s Impact on Resident Aliens, 33 Gonzaga L. Rev. 471 (1997–98).) Because this section is only a brief outline of immigration law, consultation with an immigration law practitioner is always a sensible backup.

Briefly, what is immigration law?

Immigration law is the regulation of foreigners coming into the U.S. and of issues related to removal hearings, advance parole, and such. Immigration is coming into a new country; emigration is leaving a former country. In the U.S., both are controlled by the Immigration and Nationality Act (INA), a comprehensive federal law that deals with immigration, naturalization, and exclusion of aliens. ( See 8 U.S.C. § 1101 et seq.) An immigrant falls within a specified class under the IN A. ( 8 U.S.C.
§ 1101(a)(15). See generally Daniel Kanstroom, Nancy Morawetz, and Gerald L. Neuman, Symposium: U.S. Immigration Policy at the Millennium, 113 Harv. L. Rev. 1889 (2000).)

What is the INS?

The Immigration and Naturalization Service (INS, the Service) has authority delegated by the Attorney General of the U.S. and is part of the Department of Justice (DOJ). (8 U.S.C. § 1103 (1993).) The INS is responsible for administering laws relating to admission, exclusion, deportation, removal, and naturalization of aliens. More specifically, the Service inspects aliens to determine their admissibility; adjudicates aliens’ requests for benefits under the law; guards against illegal entry into the U.S.; investigates, apprehends, and removes aliens who are here in violation of the law; and examines alien applicants for citizenship.

How is the INS generally organized?

The INS consists of immigration agents, inspectors, and officers, the Border Patrol, and trial attorneys, among others. Although it often works in tandem with other groups, the INS is separate from the Customs Service, which enforces customs laws.

What is an example of how the parts of the INS function?

As a very general explanation, Border Patrol officers enforce immigration laws at points of entry (border stations or ports); in this respect, they function like beat officers. Agents and inspectors investigate immigration crimes all over the country (for example, an alien smuggling investigation may start with work outside the country and follow leads to all parts of the United States). Immigration trial attorneys present cases seeking deportation to immigration judges.

Let’s use the example of a deportation proceeding. The Border Patrol arrests an alien. An immigration officer then interviews him and often persuades him to sign the request for voluntary departure. ( See 8 C.F.R. § 2442.5(a)(1) (1993).) The INS then simply removes the alien from the U.S. or summons the alien to Immigration Court by serving a Notice to Appear (NTA, formerly known as an Order to Show Cause (OSC)) to face formal removal proceedings (formerly known as exclusion and deportation). Immigration trial attorneys then present the case to the immigration judge asking for a deportation.

What are the bases of federal power and jurisdiction
over immigration?

One source of federal power over immigration is the Commerce Clause, article I, section 8, clause 3, of the Constitution (Congress is authorized to "regulate commerce with foreign nations and among the several states . . ."). ( See, e.g., United States v. Hernandez-Guerrero, 963 F. Supp. 933, 937 (S.D. Cal. 1997) (8 U.S.C. § 1326 held constitutional under the Commerce Clause).) However, the most common constitutional sources of federal power over immigration are the Nationalization Clause, article I, section 8, clause 4 (granting Congress the power "to establish a uniform rule of nationalization); the Migration and Importation Clause, article I, section 9, clause 1; and the War Powers Clause, article I, section 8, clause 11. The Constitution also implies federal power over immigration, such as that power is incident to sovereignty. ( See The Chinese Exclusion Case, 130 U.S. 581, 609 (1889).) The power to regulate immigration is incident to the power to formulate foreign policy. ( See United States v. Curtis-Wright Export Co., 299 U.S. 304 (1936). See generally Ira J. Kurzban, Kurzban’s Immigration Law Sourcebook: Comprehensive Outline and Reference Tool, 19–20 (7th ed. 2000).)

Immigration law is a federal subject, despite calls to expand state and local power in the area. ( See, e.g., Jay T. Jorgensen, The Practical Power of State and Local Governments to Enforce Federal Immigration Laws, BYU L. Rev. 899 (1997); Hiroshi Motormura, Federalism, International Human Rights, and Immigration Exceptionalism, 70 Colo. L. Rev. 1361 (1999).)

Who exactly is "an alien"?

An alien is any person who is not a national or citizen of the U.S. (8 U.S.C. § 1101(a)(3).)

Who is "a national" of the U.S.?

A national is a person owing permanent allegiance to the U.S., even though not a citizen. (8 U.S.C. § 1101(a)(21), (22).)The term is not really very helpful and appears to be a holdover from the U.S. expansion in the Philippines.

Who is "a citizen"?

A citizen is someone who was born on U.S. soil (jus soli), born to parents or parent with citizenship (jus sanguinis), or who has naturalized to become a citizen. ( See 8 U.S.C. § 1401.) Jus soli citizenship in the U.S. is part of our common law heritage from England. ( See United States v. Wong Kim Ark, 169 U.S. 649 (1898).) Jus sanguinis citizenship is conferred by virtue of the blood or citizenship of one’s parents. (8 U.S.C. § 1401(c); see John W. Guendelsberger, Access to Citizenship for Children Born Within the State to Foreign Parents, 40 Am. J. Comp. L. 379 note (1992).) The Fourteenth Amendment grants citizenship to all persons born or naturalized in the U.S. ( See generally Stanley Mailman and Ted J. Chiappari, Some Recent Developments in the Law of U.S. Nationality, 4:13 Bender’s Immigr. Bull. 684 (July 1, 1999).)

Is anyone who is not a citizen exempt from an immigration crime?

Yes. American Indians born in Canada can pass into the U.S. as long as they possess at least 50 percent blood of an American Indian tribe. (8 U.S.C. § 1358.)

What does it mean to "enter" the country as an alien?

When an alien comes to a port of entry, border officials perform an inspection. (8 U.S.C. § 1225(b), 8 C.F.R. § 235.) "Entry" occurs upon "the lawful entry of the alien into the U.S. after inspection and authorization by an immigration officer." (18 U.S.C. § 1101(a)(13)(A).) However, a person "present in the U.S. who has not been admitted or paroled, or who seeks entry at other than an open designated port of entry . . . is subject to the provisions of INA § 212(a)." (8 U.S.C. § 1182(a); see also (8 C.F.R.
§ 1235.1(d)(2).) "Admitted" is a term of art meaning entry under INS approval.

Who is an "undocumented alien"?

An "undocumented alien" is a person who has no documentation for being allowed entry to or residence in the U.S. Such a person has no immigration status. Undocumented aliens have many legal problems in the U.S., including the fact that any non-citizen illegally in the country for more than a year now is barred from immigrating for life. (8 U.S.C. § 1182 (a)(9)(C)(i).) Only after 10 years outside the country can the alien even apply for a waiver of this provision. The same holds true for those who enter illegally and are deported.

What are the types of immigration status?

Aliens admitted into the U.S. fall into one of two categories: (1) nonimmigrants who wish to enter for a limited period and purpose, and (2) immigrants who want to become permanent residents. The INA classifies nonimmigrant and immigrant status for aliens who enter the U.S. An alien who wishes to enter the country is presumed to be an immigrant (i.e., wishes to live in the U.S. permanently) and must qualify for one of the classes of immigrant visas, or else demonstrate how he or she is not an immigrant. (18 U.S.C. § 1101(a)(15).) Aliens who have not yet been admitted to the country or who entered without "admission" and have been in the U.S. for less than two years are "applicants for admission." (8 U.S.C. § 1225(a)(1).)

What exactly is a "visa"?

A visa is the document that allows both immigrants and nonimmigrants to travel to the U.S. and request admission. Persons with visas usually get admitted into the U.S., but this is not
guaranteed.

How can an alien get a visa?

From U.S. consulates or embassies located around the world or from INS offices in the U.S. Consular officers decide whether to grant visas according to immigration law as articulated in the Foreign Affairs Manual (FAM), an internal publication of the State Department. ( See David W. Merrell, Everything You Always Wanted to Know About the FAM, but Were Too Discouraged to Dig for Yourself, 4:11 Bender’s Immigr. Bull. 540 (June 1, 1999).)

What are the types of visas?

Visas are divided into two categories: nonimmigrant and immigrant. There are 19 types of nonimmigrant visas, lettered A through S. People get visas to enter the U.S. for a specific, limited time and for a specific reason. The most common nonimmigrant visa is the "B" visa for temporary visitors for pleasure or business. Other nonimmigrant visas include those for students and trainees, business personnel, diplomatic and international organizations, and fiancee, transit, and other visas.

Some visas are subject to numerical limitations (quotas). Visas not subject to numerical limitations are granted exclusively to spouses of U.S. citizens, children of U.S. citizens younger than 21 years, and parents of children over 21 who are U.S. citizens. (8 U.S.C. § 1151(b).) Visas subject to quotas are granted to people who qualify for family-sponsored, employment-related, or diversity immigrant visas. ( See generally David Weissbrodt, Immigration Law and Procedure in a Nutshell, 102–03, (West Publishing Co., 4th ed.).)

Can an alien ever legally enter the country without a visa?

People from certain countries can enter the U.S. without a visa. The most common are Canadians. Other countries, mostly European, fall under the visa waiver program. Lawful admission for permanent residents is effected with an I-94 "green card."

What is "adjusting status"?

Adjustment of status occurs when a nonpermanent resident becomes a permanent resident. (8 U.S.C. § 1255(a).) There are several ways for an alien to do this, such as marrying a U.S. citizen. (8 U.S.C. § 1255(d).) Usually, the INS decides whether to grant an adjustment of status, although an immigration judge can also grant this relief during a removal hearing. (8 C.F.R.
§ 245.2(a)(1).) Under certain circumstances, a judge can grant adjustment of status even if the INS has denied the adjustment. (8 U.S.C. § 1255, 8 C.F.R. § 242.17(a).)

Adjustment of status is now available to spouses or children whom a citizen or legal permanent resident has battered. ( See Cyrus D. Mehta, Procedural and Tactical Considerations in Representing Battered Immigrants, 4:14 Bender’s Immigr. Bull. 759 (1999).) Adjusting status can also be a basis for relief from removal (deportation). (8 U.S.C. § 1255.)

What is a "work permit," and can a person adjusting status get one?

A work permit shows that the alien has an application pending with the INS for a benefit such as permanent residency, asylum, temporary work visa, Temporary Protected Status, etc. It allows an alien to work in the U.S. while waiting for an answer on the application. The work permit, however, does not make one a lawful permanent resident.

Who is a "lawful permanent resident"?

Any immigrant from another country who is legally allowed to live permanently in the U.S. is a lawful permanent resident (LPR or permanent resident). The INS decides this. For a listing of who is eligible to become an LPR and the requirements, see Ira J. Kurzban , Kurzban’s Immigration Law Sourcebook, 509–90 (7th ed. 2000).

Immigration Court

What is immigration court?

Immigration court and its appellate division, the Board of Immigration Appeals (BIA), are independent from the INS but still under the DOJ. Together, they constitute the Executive Office of Immigration Review (EOIR). The EOIR is an administrative body, not a court, under article III of the Constitution. Also, they are not administrative law judges under section 3105. Generally, the immigration courts conduct removal hearings brought by INS against aliens, and the BIA reviews the Immigration Court’s
determinations.

How are immigration courts organized?

Immigration courts are, in essence, trial courts. The BIA is the body that reviews immigration court decisions. These courts conduct what used to be called "deportation and exclusion hearings" but are now referred to as "removal hearings" or "admissibility hearings."

Are immigration judges article III or administrative law judges?

Neither. Immigration judges are "attorneys whom the Attorney General appoints as an administrative judge within the Executive Office of Immigration Review qualified to conduct specified classes of proceedings." (8 U.S.C. § 1101(b)(4) (1996).) The immigration judge can serve as both judge and prosecutor at the deportation hearing. ( La Tourneur v. INS, 538 F.2d 1368, 1370 (9th Cir. 1976) (approving the dual role of the immigration judge is consistent with due process), cert. denied, 492 U.S. 1044 (1977). But cf. Flores by Galvez-Maldonado v. Meese, 942 F.2d 1352, 1368 (9th Cir. 1991), rev’d on other grounds, Reno v. Flores, 113 S. Ct. 1439 (1993) (under the Constitution, "combining the roles of prosecutor and adjudicator in a single entity is a recipe for fundamentally unfair and erroneous decision making").)

Who is tried in immigration court?

Aliens can face immigration court if, for example, they enter the U.S. without inspection or by fraud, overstay or violate the terms of nonimmigration visas, or commit a crime. The procedures are codified at title 8, C.F.R.

Can an alien be criminally charged?

Yes; some violations of the INA carry criminal consequences. For example, a person can be charged criminally with illegal entry in violation of 8 U.S.C. § 1325. The first offense is a misdemeanor, but subsequent convictions are felonies. (8 U.S.C.
§ 1325.) Although any alien who enters the country illegally is subject to prosecution under § 1325, the vast majority are never criminally prosecuted.

Immigration Custody and Bonds

Can the INS detain someone suspected of being an alien?

Yes. Service offices have the statutory authority to interrogate aliens and to make warrantless arrests of aliens who they believe are illegally in the U.S. (8 U.S.C. § 1226(c).)

Can the alien get out of INS detention?

Often this can be done by posting a bond or by other detention challenges. ( See Donald Kerwin and Charles Wheeler, All Locked Up and Nowhere to Go: Challenges to INS Detention, 5:1 Bender’s Immigr. Bull. 3 (January 1, 2000).)

The INS can detain the alien pending removal proceedings, allow release conditioned upon a bond of at least $1,500 and other requirements, or release on conditional parole. (8 U.S.C.
§ 1226(a).) Release on bond uses immigration form I-352, but the amount of bond varies; it usually includes a rider (I-351) with a condition prohibiting the alien from unauthorized employment. (8 U.S.C. § 1226(c); 8 C.F.R. § 103.6(a).)

The immigration judge can redetermine the bond in an informal hearing—even by telephone. (8 C.F.R. §§ 3.14(a), 3.25(c), 236.1(d).) Some immigration courts will provide bond redetermination worksheets (form I-771).

What factors are considered in setting a bond?

An immigration judge will consider stable employment, length of residence, family ties, appearance at prior court or administrative proceedings, and previous criminal immigration violations. ( See, e.g., Matter of Andrade, 19 I & N. Dec. 48 (BIA 1987).) An alien may appeal an immigration judge’s bond custody determination or revocation to the Board of Immigration Appeals within 30 days, without a fee. (8 C.F.R. §§ 3.1(b)(7), 3.19(f).)

Can aliens convicted of a crime get a bond?

Some can, but most criminal aliens cannot, regardless of whether they are sentenced to probation or released on parole for the conviction. (8 U.S.C. § 1226(c).) Check with local immigration practitioners for current detention policies regarding specific convictions.

Can the immigration judge’s bond decision be appealed to
an article III court?

No, there is no judicial review of INS decisions on arrest, detention, and release. (8 U.S.C. § 1226(e).) All the alien can do is administratively appeal to the BIA. (8 C.F.R. § 236.1(b)(3).) Arguably, however, an alien may appeal to "any court of competent jurisdiction" in habeas corpus proceedings if the Immigration Service is not "proceeding with . . . reasonable dispatch" regarding the removal proceedings while the alien is subject to custody. ( See Argis v. INS, 704 F.2d 384 (7th Cir. 1983).)

Can aggravated felons get bond?

Generally not, if the alien’s aggravated felony conviction is recent. However, an aggravated felony in the past might not preclude release on bond, unless the alien was just released from custody for that crime. ( See Pastor-Camarena v. Smith, 977 F. Supp. 1415, 1417 (W.D. Wash. 1997) (statute precluding release of aggravated felons by INS "applies immediately after release from incarceration, not to aliens released many years earlier").)

Title 8 U.S.C. § 1101(a)(43) lists aggravated felonies.

What about people in INS custody who cannot be sent back to their countries?

Presently, the INS has 90 days to deport a person. Otherwise, the detainee is entitled to have an individual review of the situation, to determine if he is a danger to others or others’ property or a flight risk. If the detainee is neither a danger nor a flight risk, the individual is supposed to be released with a work authorization and a requirement to check in with the INS on a specific schedule.

What about people in indefinite INS custody?

Some criminal aliens with convictions for drugs, firearms, or violent offenses may remain in INS custody indefinitely, despite having been ordered deported, because their countries of origin will not take them back. These people are often in INS custody for many years, with no end in sight to their detention. One option for relief might be to file a habeas corpus action under 28 U.S.C. § 2241.

Removal (Deportation) Hearings

What was the first removal in this country?

Thomas Morton of the Massachusetts Bay Colony, for various infractions including free-living, encouraging conviviality and merriment, writing bawdy verse, ridiculing the Puritans, selling firearms to Indians, and erecting a Maypole. In 1627 the Pilgrims cut down the pole, arrested Morton, and exiled him to the Isle of Shoals. He escaped to England but reentered this country in 1630, only to have his property confiscated and be exiled to England. He reentered again, in 1634, and was imprisoned, fined, and exiled to Maine. (This is not atypical of what one sees today in federal court.)

What is a removal hearing?

A "removal" refers to the alien’s ordered departure following a final order of removal. (8 U.S.C. § 1231 (a)(1)(A).) A removal hearing is a new concept in immigration law, akin to the former deportation hearings; it refers to proceedings before an immigration judge to determine either admissibility (formerly "excludability") or removability (formerly "deportability") of an alien. (Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C, Omnibus Appropriations Act of 1996 (H.R. 3610), Pub. L. No. 104-208, 110 Stat. 3009.) Before 1996, 8 U.S.C. § 1226 covered exclusion proceedings, and 8 U.S.C.
§ 1252 covered deportation proceedings. ( See generally Charles H. Kuck, Window or Aisle: Removal and Expedited Removal Process and Proceedings, in 2 Immigration & Nationality Law Handbook 225 (American Immigration Lawyers Association 1997).)

What terms are used at a removal hearing?

The alien is called the respondent, and the charging document is called the notice to appear (NTA). The case in immigration court begins by service of this document. (8 U.S.C. § 1229(a).) The NTA would be equivalent to an indictment/information/complaint in a criminal case.

What is "expedited removal"?

This is a new concept in immigration law that encompasses the process formerly known as "summary exclusion." Congress created the procedure in 1996 to streamline the removal of certain classes of aliens who illegally entered the U.S., were convicted of an aggravated felony, or had a prior order of removal or deportation. (8 U.S.C. § 1231 (for the definition of "aggravated felony" see 8 U.S.C. § 1101(a)(43)).) The aliens are removed without a formal deportation hearing, and the process has great potential for abuse and mistakes. ( See, e,g., Diaz v. Reno, 40 F. Supp. 2d 984 (N.D. Ill. 1999) (U.S. citizen deported through expedited removal proceeding remained in Mexico for three weeks before problem was resolved).)

Are removal hearings criminal proceedings?

No. Removal hearings are civil, despite the fact that the U.S. Supreme Court recognizes that they may result in "loss of both property and life; or all that makes life worth living." ( Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).)

The basis for removal, however, may be a criminal conviction such as an aggravated felony. ( See 8 U.S.C. § 1101(a)(43).) In this case, the removal is often impossible for the alien to fight. ( But see Manuel D. Vargas, Removal Defense Checklist, 4:12 Bender’s Immigr. Bull. 592 (June 15, 1999) (a good article on defending against removal of a convicted alien).)

Are removal hearings conducted like criminal proceedings?

Yes and no. Immigration judges conduct hearings that are similar to criminal prosecutions but lack the procedural protection one would expect from a criminal proceeding, for example, application of the Ex Post Facto Clause. ( Mahler v. Eby, 264 U.S. 32, 38 (1924).) In addition, the person facing a removal hearing has no right to free counsel. (8 U.S.C. § 1252(b)(2) ("the alien shall have the privilege of being represented [at no expense to the government] by such counsel, authorized to practice in such proceedings, as he shall choose"). See David R. Robertson, An Opportunity to Be Heard: The Right to Counsel in a Deportation Hearing, 63 Wash. L. Rev. 997 note (1988).) Moreover, an alien usually does not have the right to have illegally obtained evidence excluded from the deportation proceedings. ( See INS v. Lopez-Mendoza, 468 U.S. 1032, 1052 (1984); Mitchell V. Daris and Kathleen B. Simon, The Exclusionary Rule in IW 5 Deportation Hearings: A New Look at the Lopez-Mendoza Cost Benefit Analysis after the 1986 Immigration Reform and Control Act, 23 Land & Water L. Rev. 537 note (1988).) In general, however, an immigration judge is supposed to conduct the proceeding in a fundamentally fair way.

What does the immigration judge decide at the removal hearing?

The immigration judge determines whether: the person is an alien, the alien is removable (inadmissible/deportable), the alien is eligible for any relief from removal, and the alien will get relief from removal—based on the immigration judge’s discretion.

How does the immigration judge determine alienage?

The burden is on INS to prove by clear, convincing, and unequivocal evidence that the respondent is an alien. The alien usually establishes alienage by answering questions from the INS or the immigration judge regarding his country of birth or his parents’ birth. A person born in another country is presumed an alien.

What happens if the alien stays silent during the removal
hearing?

The immigration judge can draw a negative inference from the alien’s silence or refusal to testify at a removal hearing. ( See Daniel Kanstroom, Hello Darkness: Involuntary Testimony and Silence as Evidence in Deportation Proceedings, 4 Geo. Immigr. L J. 599 (1990).)

What happens if the person admits to being an alien?

If the suspected alien admits to being foreign born, then the burden of proof of legally being in the U.S. shifts to the alien.

How does an immigration judge determine whether an alien is
removable?

The immigration judge looks at the charges alleged by INS in the notice to appear, such as whether the alien has a criminal conviction, and determines as a matter of law whether the facts charged are reasonable, substantial, and probative evidence that the alien is removable. The standard is clear and convincing.

To determine whether the individual is an alien, the immigration judge may simply ask the potential deportee for his places of birth and entry to the U.S. The judge also inquires as to family status. If an alien admits to being born outside the U.S. or its territories and the judge is satisfied that no issues of law or fact remain, the judge may determine that the alien is removable.

What happens once the immigration judge determines the alien is removable?

The immigration judge next determines whether the alien is eligible for relief from removal. (8 C.F.R. § 242.17; Moran Enrique v. INS, 884 F.2d 420 (9th Cir. 1989).) If eligible, the alien is given an opportunity to apply for that relief.

How can an alien remain in this country even though removable?

The alien must, through application, prove to the judge that a favorable act of discretion is merited. (8 C.F.R. § 240.11; see also Ira J. Kurzban, Kurzban’s Immigration Law Sourcebook, 201 (7th ed. 2000).) The alien must be granted relief to legally remain in this country.

Does each alien require a removal hearing?

No. Group removal hearings called master calendar hearings are often conducted, during which the immigration judge interrogates a number of aliens, determines who qualifies for an individualized merit hearing, and generally deports the rest. The size of the group varies according to courtroom size, availability of agents, and the judge’s own predilection and sense of due process; it can be as large as 20 or more. However, the hearing to determine whether the alien is deserving of relief (the merit hearing) is individual.

Can an immigration hearing be held in the absence of the alien?

Yes. (8 U.S.C. § 1252(b).) Even if the alien is not present he can be ordered removed if the INS establishes deportability by clear, convincing, and unequivocal evidence and the INS shows that written notice was properly provided. (8 U.S.C. § 1230(b)(5); 8 C.F.R. § 3.26(c).) It is sufficient for the INS to show that the written notice was sent to the alien’s most recent address.
(8 U.S.C. § 1230(b)(5)(A).)

An alien who fails to appear is ineligible for relief from removal for 10 years. (8 U.S.C. § 1230(b)(7).) The alien can move to reopen the in absentia order within 90 days if able to show "exceptional circumstances" for not having attended the hearing, which are defined at 8 U.S.C. § 1230 (e)(1). ( See Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999) (in absentia deportation reopened for fraud and ineffectiveness of prior attorney and possibility of voluntary departure relief for alien). See also Iris Gomez, The Consequences of Nonappearance: Interpreting New Section 242B of the Immigration and Nationality Act, 30 San Diego L. Rev. 75 (1993).)

After a removal, when can the alien legally return?

An alien who is formally removed is barred for five years without special permission of the attorney general. (8 U.S.C.
§ 1182(a)(9)(A)(i).) If the alien returns to the U.S. within the five-year period but without special permission, he is barred for 10 years and is subject to prosecution for the crime of reentry after deportation in violation of 8 U.S.C. § 1326.

A person deported for a felony conviction cannot reenter for 10 years; if deported on the basis of an aggravated felony, the prohibition is for life. (8 U.S.C. § 1182(a)(9)(A)(i).) An alien who comes back and is caught faces severe penalties under 8 U.S.C. § 1326(b)(2), with a statutory maximum of 20 years and a correspondingly high Federal Sentencing Guideline calculation. (U.S. Federal Sentencing Guideline Manual § 2L2.2 (1999).)

Can an alien be removed without a removal hearing?

Yes. IIRAIRA created removal proceedings for aliens convicted of aggravated felonies. (See 8 U.S.C. § 1252a.) In addition, federal district court judges can remove aliens under certain requirements. (See 8 U.S.C. § 1252a(c).)

Relief from removal

Does the immigration judge have to inform the alien of relief from removal?

Yes, if the record demonstrates that relief may be possible. (8 C.F.R. § 242.17. Moran Enrique v. INS, 884 F.2d 420 (9th Cir. 1989).) The respondent, however, has the burden of proving eligibility for the relief.

What relief can the judge grant?

(1) Voluntary departure, 8 U.S.C. § 1229c;

(2) Adjustment of status, 8 U.S.C. § 1255;

(3) Cancellation of removal, 8 U.S.C. § 1229b;

(4) -Asylum and withholding of removal, 8 U.S.C.
§§ 1158, 1253;

(5) -Suspension of deportation, 8 U.S.C. § 1254(a) (available to those under Temporary Protective Status, such as Salvadorians, Guatemalans, Hondurans, Nicaraguans, Liberians, etc., who were applicants before April 1, 1997);

(6) Various waivers of inadmissibility.

The alien must apply for discretionary relief from removal and has the burden to demonstrate qualification. The immigration judge decides whether to grant the relief. ( See 8 C.F.R.
§ 242.17.) Remember, though, if the alien has a previous case, the pre-1996 law may apply (or have applied) and may define other types of relief from deportation.

What is a "voluntary departure"?

"Voluntary departure" allows the alien to leave the U.S. independently if the alien can pay for the trip. (8 U.S.C. § 1229c; Diric v. INS, 400 F.2d 658 (9th Cir.), cert. denied, 394 U.S. 1015 (1968).) The alien can then immediately return to the U.S. if there is a legal way to do so. In addition, a voluntary departure means an alien cannot be prosecuted for reentry after deportation. (8 U.S.C. § 1326.)

What are some of the requirements for voluntary departure?

The alien must prove to have been a person of good moral conduct for the last five years and be able to pay the travel expenses. There is a limit of 120 days for pre-hearing voluntary departure and 60 days for post-hearing voluntary departure. (8 U.S.C. § 1229(c).) Failure to depart after the alien has received a voluntary departure from the INS renders the alien ineligible for 10 years for relief from another voluntary departure, cancellation of removal, adjustment of status, change of status, or registry. (8 U.S.C. § 1230B(d).) The alien also becomes subject to a mandatory $1,000 to $5,000 civil penalty. ( Id.; Nadine Wettstein, Voluntary Departure under IIRAIRA, 2:13 5 Bender’s Immigr. Bull. 15 (July 1, 1997). See also 8 U.S.C. § 1230(B)(a).)

When can voluntary departure be granted?

The INS can grant a voluntary departure in the following circumstances: (1) before the deportation hearing if the alien pays his own way out of the country; (2) after immigration proceedings have begun at or just before a master calendar hearing;
(3) after a complete merit hearing. Before any grant of voluntary departure, however, the alien must show "good moral character," which essentially means having no criminal convictions.

How soon must the alien leave the U.S. after receiving voluntary departure?

An immigration judge can grant only 60 days, but the Service can extend this to 120 days.

What is cancellation of removal?

This is a remedy that has replaced the former "suspension of deportation" and "waivers of deportation." ( See former 8 U.S.C.
§ 1182(c).) The eligibility criteria vary for legal permanent residents and persons who are nonpermanent residents.

Requirements for legal permanent residents include the
following:

(1) Five years as a legal permanent resident;

(2) -Physical presence in the U.S. for seven years without a criminal conviction;

(3) No aggravated felony convictions.

Requirements for persons who are not permanent residents are more strict:

(1) No aggravated felony convictions;

(2) No convictions for crimes involving moral turpitude;

(3) No drug convictions;

(4) The alien must be admissible;

(5) -Physical presence in the U.S. for 10 years without absences of more than 180 days;

(6) -Exceptional and extremely unusual hardship to the alien’s immediate relatives (citizens or legal permanent relatives).

( See Maureen O’Sullivan, The Cancellation of Deportation and Exclusion Jurisprudence: What Can We Expect from Removal Proceedings?, 2 1997-98 Immigration & Nationality Law Handbook 259 (American Immigration Lawyers Association 1997). See also 8 U.S.C. § 1229a.)

When are asylum and withholding of removal appropriate?

Persons fleeing persecution may seek entry to the U.S. or remain if they are already here. Asylum is an option for aliens "physically present in the U.S. or at a land border or port of entry, irrespective of such alien’s status." (8 U.S.C. § 1158(a).) If the INS does not grant asylum or withholding of removal, then immigration judges have exclusive jurisdiction to grant either. Asylum is not available to aggravated felons, but withholding can be an option. (8 U.S.C. § 1158.)

There may be other options as a basis for relief from removal, such as the United Nations Convention against Torture. ( See Kristen B. Rosati, Article 3 of the UN Convention Against Torture: A Powerful Tool to Prevent Removal Just Became More Powerful, 4:4 Bender’s Immigr. Bull. 137 (Feb. 15, 1999); Marissa Maurer and Morton Sklar, Guidelines for Filing Conventions against Torture Motions, 4:9 Bender’s Immigr. Bull. 381 (May 1, 1999).)

What is suspension of deportation?

This relief is generally an option only for aliens in proceedings before April 1, 1997, 8 U.S.C. § 1254(a), who are under Temporary Protective Status such as Salvadorians, Guatemalans, Hondurans, Nicaraguans, Liberians, etc. For a description of eligibility see Ira J. Kurzban, Kurzban’s Immigration Law Sourcebook, 578–80 (7th ed. 2000).

What are waivers of inadmissibility?

Immigration statutes allow the INS to waive inadmissibility on several grounds; these waivers are available during the removal hearing. ( See Charles H. Kuck, Window or Aisle: Removal and Expedited Removal Process and Proceedings, 2 1997–98 Immigration & Nationality Law Handbook 244 (American Immigration Lawyers Association 1997).)

Appeals

What appeal does the alien have from the immigration judge’s
decision?

The immigration law judge is supposed to advise each alien of the right of appeal to the BIA. (8 C.F.R. § 242.19.) The judge should also furnish the alien with a notice of appeal form
I-290(a), which must be filed within 30 days. In practice, however, the immigration judge frequently secures the alien’s waiver of appeal. Barring this waiver, however, an alien has a right to have an appeal heard before the BIA.

What effect does BIA review have?

The BIA reviews both the legal and factual determinations made by the immigration judge. The order of the BIA is administratively final. Once the order of removal becomes final, review must go to the federal court of appeals or, for criminal aliens, is contingent upon habeas corpus review.

Can the alien appeal beyond the BIA?

This depends on the basis of the removal. Usually, an alien has the right to appeal the BIA’s decision to the federal circuit court that has venue. (8 U.S.C. § 1252(b)(1); United States v. Mendoza-Lopez, 481 U.S. 828 (1987).) However, under IIRAIRA several categories of aliens—including those deported on the basis of an aggravated felony or other crime—have no right to seek statutory judicial review of their removal. (8 U.S.C. § 1252(a)(2)(C). See Peter Hill, Did Congress Eliminate All Judicial Review of Orders of Deportation, Exclusion, and Removal for Criminal Aliens?, 2:10 Bender’s Immigr. Bull. 345 (May 15, 1997).)

Two recent Supreme Court cases, however, undermine this effect of the statute. In INS v. St. Cyr, 121 S. Ct. 2271 (2001), and Calcano-Martinez v. INS, 121 S. Ct. 2268 (2001), the Court held that noncitizens subject to final orders of removal based upon criminal convictions can still go to federal court to raise questions of law challenging the order of removal. Thus, the aliens can legally challenge their final orders of removal by habeas corpus in federal district court under 28 U.S.C. § 2241. Also, the two cases held that persons who pleaded guilty to a deportable offense at the time when they may have been eligible for section 212(c) relief would still have this relief available to them.


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