#9137 - Deportation Procedure - Immigration Law

Deportation Procedure

1. Apprehension

   1. DHS has powers outside of search or arrest warrants, vested in all employees bearing title “immigration officer” § 287(a)

   2. Power to interrogate any person believed to be alien as to right to be in US

   3. Power to arrest any alien if reason to believe in IS in violation of immigration laws AND is likely to escape before an arrest warrant can be obtained

   4. Within a reasonable distance from any external boundary, power to board any vessel in US territorial waters and any train, aircraft, or other vehicle for the purpose of searching for aliens

   5. Within 25 miles of any external boundary, power to enter private lands other than dwellings for patrolling purposes

2. Before Removal Hearing: Must have prima facie evidence to issue Notice to Appear (NTA)

   1. NTA Functions

      1. Explains nature of procedure

      2. Time and place of appearance before IJ

      3. Instructs him to keep Gov apprised of address and consequences if he fails to do so § 239(a)(1)

      4. Specifies deportability grounds charged and recited factual allegations: 9^th Cir Res Judicata bars removal proceedings on same charges as prior removal proceedings

3. Detention: DHS must decide whether to detain pending final removal decision

   1. Mandatory Detention for

      1. Aggravated Felons

      2. Inadmissible on Criminal Grounds

      3. Inadmissible or Deportable on Terrorism Grounds

      4. Most arriving passengers (including those subject to expedited removal)

      5. Aliens awaiting execution of final removal orders

   2. When Detention is not Mandatory, DHS has options § 236(a)

      1. Detain alien without bond

      2. Release on cash bond of at least $1500

      3. Release on conditional parole

      4. Release permitted only when DHS finds alien won’t pose danger to persons or property AND is likely to appear for future proceedings

   3. Alien can obtain De Novo bond redetermination hearing before IJ 8 CFR § 1003. 19 (Often by Phone)

   4. Not permitted to work while removal proceedings are pending § 236(a)(3)

   5. Miranda Rule inapplicable for deportation proceedings

4. Master Calendar: After NTA filed, an alien has Master Calendar hearing, sometimes by telephone

   1. Interval between Master Calendar and Individual Calendar

      1. Either party can request continuance (IJ can grant for good cause shown)

      2. Either party can move to: 1) Change venue; 2) Remand to DHS for consideration for application that would moot removal proceedings; 3) Suppress Evidence; 4) Limited Discovery Possible

5. The Removal Hearing

   1. Exempt from Administrative Procedure Act

   2. IJ advises alien of right to counsel at no cost to government and provides with a list of free legal services

   3. IJ takes pleading if it has not happened already

   4. Alien and counsel must admit or deny each allegation, then concede or deny deportability

   5. Burden of Proof: once ICE clears the burden of proving alien is an alien, then the burden shifts to alien to prove by clear and convincing evidence that lawfully present in two ways § 240(c)(3)(A)

      1. Applicant for Admission (Anyone present without admission): Clearly and beyond a reasonable doubt that he/she is entitled to be admitted and NOT inadmissible under § 212

      2. Lawfully present pursuant to prior admission by clear and convincing evidence under § 240(c)(2)

   6. All aliens must also prove Time, Place, and Manner of Entry § 291 If the alien can’t, presence without admission renders alien inadmissible

   7. Alien also has burden of proving eligibility and deservedness for any relief requested § 240(c)(4)(A)

   8. For lawfully present aliens, the burden shifts to ICE to prove deportability ground by clear and convincing evidence § 240(c)(3)(A)

6. Civil Procedure

   1. Rules of Evidence DO NOT apply: Admission of any relevant evidence: Fundamental fairness test for hearsay

   2. EOIR provides interpreter

   3. Admissibility of Evidence: All testimony under oath or affirmation: 8 CFR § 1003.34, 1240.7(b)

   4. Alien has right to cross-examine government’s witnesses § 240(b)(4)(B)

      1. Government must make reasonable effort to produce the witness at hearing before reporting hearsay

7. Review of Decisions

   1. Administrative Review: BIA Aschcroft Rule: Expanded 1 member decisions and Affirmances Without Reasoned Opinion (AWO’s): BIA decides large share of cases with AWO’s done by single member

   2. Process

      1. Appellant files Notice of Appeal within 30 days of IJ decision

      2. Screening BIA member can enter summary dismissal if (8 CFR § 1003.1(d)(2) include

         1. Notice of appeal fails to specify reasons

         2. Appeal filed for improper purpose like delay or lacks arguable basis in fact

         3. Indicates intent to file brief but fails to explain

         4. Appeal does not fall within BIA jurisdiction

         5. Appeal is untimely

      3. Single Member Decisions the Norm and must act alone UNLESS 1 of 6 enumerated situations where it must refer to 3 member panel

         1. Inconsistent rulings among IJs

         2. Decision not in conformity with the law

         3. Finding of fact is clearly erroneous

         4. Major national impact

         5. Need to reverse decision

         6. Need for precedential decision

         7. Proposed 7 situation Complex, novel, or unusual issue of law or fact

      4. Opinions designated for publication become binding precedent for IJ’s and DHS Officials

      5. Reduced BIA from 23 to 11 members: Those cut were the most favorable to the aliens, which raised doubts about independence over BIA: AG had never cut BIA members in history: TODAY: 15 BIA members

8. Motions to Reopen or Reconsider: §§ 240(c)(6)(A), (c)(7)(A), (c)(7)(C)(i)

   1. Grounds for Denial: INS v. Abudu (1988): Movant did not establish prima facie case for substantive relief sought: Failed to introduce previously unavailable, material evidence

   2. Procedural Restrictions: Can only file 1 motion to reconsider removal order: Must file within 30 days of final administrative decision: Can only file 1 motion to reopen a removal order

   3. Judicial Review of Removal Orders: Right to judicial review once all relevant administrative authorities have passed on removal case

   4. Common procedure to file petition for review in U.S. Court of Appeals for circuit where removal hearing held § 242(b)(2)

      1. Must be administratively final to be reviewable § 242(b)(2)

      2. Must have exhausted all administrative remedies, including appeal to BIA § 242(d)(1)

      3. Must file within 30 days of final order § 242(b)(1)

      4. Exceptions for removal orders based on criminal convictions and challenges to denial of discretionary relief – still reviewable on questions of law § 242(a)(2)(B,C,D)

9. Petitions for Review § 242(a)(1)

   1. No more automatic stay of renewal

   2. Must move court in order to grant it § 242(b)(3)(B): Result is that aliens join their motion for stay with their petition for review

   3. Exhaustion of remedies required

      1. Includes raising issue before BIA

      2. Res Judicata and Collateral Estoppel apply

   4. Filing from Overseas Permitted

   5. Source of Review: Court decides merits solely on basis of administrative record: § 242(b)(4)(A)

   6. Scope of Review: Findings of fact upheld unless “any reasonable adjudicator would be compelled to conclude” the contrary § 242(b)(4)(B)

      1. INA upholds substantial evidence test standard for removal orders § 240(c)(3)

   7. Judicial Review: Courts can review all constitutional claims and questions of law: § 241(a)(2)(D)

   8. Discretionary Review: courts stripped of ability to review discretionary decisions: § 242(a)(2)(b)

   9. AG Discretion: courts stripped of ability to review any decision given to AG’s discretion § (a)(2)(b)(ii)

10. Exceptions to Usual Removal Procedures

    1. Expedited Removal: is primarily a border procedure for arriving noncitizens. But the AG has discretion to extend it to noncitizens present in the US without having been admitted, if they are unable to prove continuous physical presence in the US for 2 years: § 235(b)(1)(A)

    2. Administrative Removal: helps expedite the removal of aggravated felons, especially non-LPR aggravated felons: § 238(b)

    3. Judicial Removal: federal sentencing judges may enter removal orders as part of criminal sentences when noncitizen defendants are deportable on at least the most common crime-related grounds: § 238(c)(2)(B).

    4. In Absentia Removal: if the required notice was provided, or the notice was mailed to the person’s most known address but he failed to notify DHS of an address or telephone change and as a result did not receive the notice and the person does not appear, a removal hearing will be held in absentia: § 240(b)(5)(A)

    5. Noncitizens Entering After Prior Removals: expedites the removal of noncitizens who were previously removed or who voluntarily departed, but who then reentered unlawfully § 241(a)(5)

    6. Crew Members: a noncitizen who serves on board a vessel or aircraft is typically allowed to remain in US for a specified period of up to 29 days: § 101(a)(10), (a)(15)(D), § 252(a). The entry document is a “conditional permit,” which can be revoked

    7. Terrorist Removal Proceedings: § 501-§507

    8. Rescission of Adjustment of Status: a grant of adjustment of status may be rescinded in 5 years if the person was in fact ineligible for adjustment at the time it was granted § 246

11. Execution of Removal Order

    1. Must be removed within 90 days of final order § 241(a)(1)

    2. DHS Secretary may execute order if alien in prison for conviction of nonviolent offense before sentence completed if State consents § 241(a)(4)(B)

    3. Alien’s cooperation in securing necessary travel documents important § 274D

    4. Detention possibly mandatory for some aliens § 241(a)(2)

    5. “Bag and Baggage” Letter for aliens not in DHS detention to report at specific time and place

12. Immigrant Representation

    1. Authorization to Practice

    2. 8 CFR §§ 1292.1 – Representation of others...