FORMS OF REMOVAL: ADMINISTRATIVE, EXPEDITED AND EINSTATED
By: Roman P. Mosqueda, Esq.
The Immigration and Customs Enforcement (ICE) component of the Department of Homeland Security (DHS) has procedures for expelling aliens outside of Immigration Court removal proceedings.
Beside voluntary departure, whereby aliens agree to leave this country without asserting any rights to stay, there are three forms of removal processes without an Immigration Court hearing: administrative, expedited and reinstated removal.
Pursuant to Section 238(b) of the Immigration and Nationality Act (INA), the Attorney General, now through the ICE of the DHS, may determine the deportability (now removability) of aliens, who are not lawful permanent residents, but have final conviction for an aggravated felony, in administrative removal proceedings.
A. Issuance of Notice Of
Intent To Issue:
The administrative removal proceedings start with the issuance by the CIS and service on an alien of the Notice of Intent to Issue a Final Administrative Removal Order (NOI) by the CIS. The NOI constitutes the charging document, which includes allegations of fact and conclusions of law.
It advises the alien that he or she has the privilege of being represented by counsel of his or own choice at no expense to the government; and that he or she may request withholding of removal to his or her home country, if he or she fears persecution or torture in that country.
The alien is also given the right to inspect the evidence supporting the NOI; and may rebut the charges within ten (10) calendar days after service by CIS of such Notice of Intent, or thirteen (13) days, if the Notice was sent by mail.
B. Final Administrative Removal
If the investigating CIS officer has verified the identity, immigration status (not a lawful permanent resident) and the final conviction of an aggravated felony of the alien, then the deciding CIS officer shall issue Form I-851-A, Final Administrative Removal Order, and a Warrant of Removal, to be executed no sooner than fourteen (14) calendar days after service of the Final Administrative Removal Order, unless the 14-day period is knowingly, voluntarily and in writing waived by the alien.
A detainer is served by the CIS on the appropriate authorities at the state prison or correctional facility; and the Warrant of Removal is served on the alien, when the latter is released to the CIS. The alien is taken into custody by the CIS under a Warrant of Arrest issued by a deciding CIS officer.
Pursuant to Section 235(b)(1)(A) of the INA, an immigration (CIS) officer shall order an alien removed from the United States without further hearing or review, if it is determined that the arriving alien is inadmissible, unless the alien indicates either an intention to apply for asylum, or expresses a fear of persecution.
If the alien expresses a fear of persecution or a desire to apply for asylum, the CIS shall detain the alien and refer him or her for a “credible fear” interview with an asylum officer, pursuant to Section 235(b)(1)(A)(ii) of the INA.
A. Grounds For Expedited
An alien is inadmissible to the United States, if he or she had committed or attempted to commit fraud or willful misrepresentation of a material fact to procure a visa, other documentation or admission into the United States, or had falsely represented himself or herself to be a U.S. citizen for any purpose or benefit, under Section 212(a)(6)(C) of the INA.
And Section 212(a)(7) of the INA provides for inadmissibility of any immigrant alien for lack of a valid visa, reentry permit or border crossing identification card at the time of admission.
Moreover, under Section 235(b)(1)(A)(iii) of the INA, aliens who entered the United States illegally, that is, who had not been admitted or paroled, and who had not resided in the United States for two or more years, may be subjected to expedited removal procedures.
B. Expedited Removal Procedures:
Expedited removal procedures involve a two-step process: primary inspection and secondary inspection. In both inspections, the alien does not have a right to representation, unless he or she is the subject of a criminal investigation and is detained.
At the port of entry by air, land or sea, an alien is inspected by an immigration officer at a primary inspection station. The primary inspection consists of examination of passport and visa, inquiries of relevant information, look-out queries, fingerprinting and photographing. If the immigration officer makes a determination that the documents are in order, the alien is admitted.
On the other hand, if the primary inspector believes that the documents are not in order; and/or the alien may not be admissible, the latter is referred to a secondary inspection interview.
At the second inspection, if the secondary inspector believes that the alien is subject to expedited removal, the latter is required to execute a s worn statement on Form I-867AB, Record of Sworn Statement. The alien must be given notice of the charges on Form I-860, Notice and Order of Expedited Removal, and an opportunity to reply to the charges.
Aforesaid statement must be read to the alien, who must sign and initial each page of the statement and any correction. An interpreter must be provided when necessary. And if the alien does not express a fear of return or desire to apply for asylum, and does not withdraw his or her application for entry, a final order of removal is issued by the immigration officer.
Upon issuance of such final order of removal, the alien is detained, unless parole is granted for a medical emergency or a law enforcement objective. The alien does not have a right to a hearing before an Immigration Judge; and he cannot appeal the final order of removal to the Board of Immigration Appeals.
Lastly, under Section 241(a)(5) of the INA, the Attorney General, through CIS, will reinstate a final order of removal against an alien, who illegally reenters the United States after being deported, excluded, or removed from the United States under a final order.
If an alien who is questioned at the port of entry admits to being previously deported or removed, such information must be included in Form I-213, Record of Deportable Alien, and a sworn statement. And if the investigating officer is satisfied of the alien’s identity, prior deportation or removal, and illegal reentry, he or she prepares Form I-871, Notice of Intent/Decision to Reinstate Prior Order.
Form I-871 and relevant evidence are then presented to a deciding CIS officer, who signs Form I-871, and issues a new Warrant of Removal, Form I-205. The alien is also served with a notice of penalties, Form I-294, Advisal of Penalty for Reentry, which imposes a 20-year bar from entry for a second or subsequent removal, unless the alien is an aggravated felon, which merits a lifetime bar from entering the United States.
(The Author, Roman P. Mosqueda, has personally represented clients and accompanied clients in removal processes that allow right of representation).