Professional Documents
Culture Documents
Course Description Federal law enforcement officers can only act by virtue of legal
authority. This course provides an overview of laws that grant federal
law enforcement officers authority to take appropriate action to enforce
the Immigration and Nationality Act (“INA”).
Field Performance To be able to take appropriate actions and justify those actions by
Objective referencing applicable authority when given hypothetical field
situations where the INA must be enforced.
Interim (Training) 1. Define the term “immigration officer.”
Performance Objectives 2. Identify the elements of an administrative removal.
Time 4 Hours.
INA Section:
235(d)(1) Board and search any vessel, aircraft, railway car, or conveyance at a port-of-entry (POE)
235(d)(2) Order detention and delivery of arriving aliens
235(d)(3) Take oath and consider evidence from any person concerning the privilege
of any alien to enter, re-enter, transit, or reside in the United States (U.S.)
235(d)(4) Subpoena attendance and testimony of witnesses, evidence, etc.
287(a)(1) Interrogate any alien without a warrant as to his right to be or remain in the U.S.
287(a)(2) Administrative arrest of alien without warrant for violation of immigration laws
287(a)(3) Board and search for aliens within reasonable distance from border/enter onto
private property within 25 miles from the U.S. border
287(a)(4) Criminal arrest without warrant for any felony under Legacy INS jurisdiction
287(a)(5) Arrest for felony under U.S. law
287(b) Take oath and consider evidence from any person concerning the privilege
of any person to enter, re-enter, transit, or reside in the U.S.; criminal penalty for perjury
287(c) Search person and personal effects of applicant for admission at POE
for evidence of inadmissibility
287(e) Prohibition to enter onto farms or outdoor agricultural operations without
consent/warrant
Note: The discussion of the various sources of statutory authority in this workbook is not
all-inclusive. For example, ICE Special Agents and Border Patrol both derive authorities
from Title 19 of the United States Code, that are different and in many ways more
expansive than the authorities that were formerly available for use by Legacy INS under
Title 8 of the United States Code. Creating the Department of Homeland Security (DHS)
and consolidating the duties and responsibilities of Legacy Customs and Legacy INS
yielded “One Face Along the Border.” Similarly, Legacy Customs officers also derived
authorities from Title 8 of the United States Code that were formerly unavailable to them.
There is now have a cadre of law enforcement officers along the borders and in the
interior of the U.S. who can look to multiple sources of authority to enforce the laws of the
U.S.
More than one section of the Immigration and Nationality Act (“INA”)
grants authority to employees of DHS who have been designated as
“immigration officers.” Recognize that Customs and Border Protection
(“CBP”) and Citizenship and Immigration Services (“CIS”) both have
personnel that are also “immigration officers” by definition.
c. Not all of the BIA’s decisions are published to the public. Only
the published BIA appellate administrative decisions are
binding
on aliens and DHS agencies responsible for enforcing
immigration laws nationwide.
3. Government Counsel
1. Sources of Authority
Public international law
establishes the framework
a. International Law and the criteria for
identifying states as the
principal actors in the
1. Each sovereign state, including the U.S., has the right to international legal system.
regulate, prohibit entry, and limit the stay of foreigners. As the existence of a state
presupposes control and
2. Each sovereign state has its own regulations on admitting jurisdiction over territory,
and regulating foreigners to its country. international law deals with
the acquisition of territory,
state immunity and the
3. Sovereign states can enter into mutual agreements with legal responsibility of states
other sovereign states on specific procedures or programs in their conduct with each
involving the subject of immigration law. For example, the other. International law is
similarly concerned with the
U.S. has agreed to the following immigration programs: treatment of individuals
Visa Waiver Program (“VWP”), European Union (“EU”) within state boundaries.
and the North America Free Trade Agreement (“NAFTA”). There is thus a
comprehensive regime
4. International Treaties are not binding upon the U.S., even dealing with group rights,
when the U.S. is a signatory to the treaty, unless the treaty the treatment of aliens, the
is “self-executing” or Congress enacts supporting rights of refugees,
international crimes,
legislation. nationality problems, and
human rights generally. It
b. The United States Constitution further includes the
important functions of the
maintenance of
1. It, and its 27 Amendments, is the supreme law of the international peace and
U.S. security, arms control, the
pacific settlement of
2. The Constitution is flexible. Since its ratification the disputes and the regulation
Constitution has grown with new amendments and it of the use of force in
has been constantly interpreted in Federal judicial international relations.
Even when the law is not
decisions. The U.S. Supreme Court has the final able to stop the outbreak of
authority on cases and controversies concerning the war, it has developed
principles to govern the
Constitution. conduct of hostilities and
3. Article 1, Section 8, Clause 3, of the Constitution the treatment of prisoners.
empowered Congress to regulate commerce with International law is also
used to govern issues
foreign nations. relating to the global
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4. A federal law enforcement officer’s primary duty is environment, the global
commons such as
to uphold the Constitution international waters and
outer space, global
communications, and world
trade.
The United States Constitution is the supreme law of the United States of
America. It was adopted in its original form on September 17, 1787 by the See,
Constitutional Convention in Philadelphia, Pennsylvania, and later ratified http://en.wikipedia.org/wik
by conventions in each state in the name of "the People." The Constitution i/Public_international_law
has a central place in American law and political culture. The U.S.
Constitution is argued by many to be the oldest written national
constitution, except possibly for San Marino's Statutes of 1600, whose
status as a true constitution is disputed by scholars. The handwritten, or
"engrossed", original document is on display at the National Archives in
Washington, D.C. [http://en.wikipedia.org/wiki/United_States_Constitution]
The constitution provided for the formation of the remaining parts of the
“body” by establishing a unique and enduring form of government. It
established the Legislative, Executive, and Judicial banches of government.
Each are separate and distinct from one another in purpose and power.
Separation of powers is a political doctrine under which the legislative,
executive and judicial branches of government are kept distinct, to prevent
abuse of power. This U.S. form of separation of powers is widely known as
"checks and balances."
[http://en.wikipedia.org/wiki/Separation_of_powers_under_the_United_Stat
es_Constitution]
2. Hierarchy of Authority
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a. Statutory Authority
b. Delegated Authority
c. Implied Authority
2. INA § 235(a)(2)
3. INA § 235(a)(3)
4. INA § 235(a)(5)
CLASSROOM EXERCISE
1. INA § 235(b)(2)
*The Act supports the
conclusion that some crewmen
(2) Inspection of other aliens. Subject to subparagraphs (B) are eligible for removal
and (C)… [I]n the case of an alien who is an applicant for proceedings under section 240
c. Any individual falling within the above listed categories in **A stowaway charge against
subparagraph b., which expresses an intention to file for asylum an alien under section
in the U. S. or who expresses a fear of persecution, is referred to 212(a)(6)(d) is not properly
brought in a removal
an Asylum Officer (AO) for an interview. Aliens who are found proceeding, but 212(a)(6)(d)
by the AO to have a credible fear of persecution are placed in charge might be [e.g. IN RE:
RGHEORGHE OLAR 2003
“Asylum Only” proceedings before an IJ. The case is referred to WL 23521847
the IJ by way of a Form I-863, Notice of Referral to Immigration File: A71 498 772 – [New
Judge. Orleans] November 5, 2003, a
case where an alien who was
clearly a stowaway actually
d. The Government serves an alien who has been placed in eluded inspection and illegally
entered the U.S. unbeknownst
proceedings under INA §240 with a charging document called a to immigration inspectors. In
Notice to Appear (“NTA”), Form I-862. The NTA includes the this unpublished decision the
charge(s) against the alien, and the underlying factual allegations BIA concluded that once
apprehended the alien
supporting the charge(s), an advisement of his or her right to stowaway was entitled to a 240
counsel, and information on the date and time of the hearing. hearing.]
The practical effect of an alien appearing before an IJ with an
NTA versus a Notice of Referral to Immigration Judge, is that he
can apply for several different forms of relief from removal,
including asylum, cancellation of removal, adjustment of status,
and voluntary departure.
1. INA § 235(d)(1)
2. INA § 235(d)(2)
3. INA § 235(d)(3)
4. INA § 235(d)(4)
CLASSROOM EXERCISE
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b2High
1. INA §287(c)
INA § 235(d) authorizes such officers to carry out this inspection, to board
any vessel, aircraft, railway car, or other conveyance or vehicles, which
they believe is bringing aliens into the U.S.
A review of the
INA § 252 specifically addresses crewmen and their conditional landing Department of
permits (“Form I-95”). [See, 8 CFR § 252.1(e)] While the regulations Homeland Security
[8 CFR § 252.2(a)] dating back to March 1997 indicate “any immigration Bureau of Immigration
officer” may exercise the authority of INA § 252(b), subsequent to the and Customs
disestablishment of INS and the formation of DHS, the delegation of Enforcement
previous authorities resulted [to date] in CBP having the exclusive right to Delegation Number
exercise authority under INA § 252. Crewmen who were granted a 0001, dated June 6,
conditional landing permit prior to April 1, 1997, and who failed to depart 2003 clearly indicates
are subject to removal proceedings under section 240 of the ACT. Since that at this time ICE
April 1, 1997, crewmen have been removable without a hearing [per of INA does not have
§ 252(b)] and the statutorily ineligible to have any decision regarding their authority to exercise
inspection or removal reviewed by an IJ in an INA § 240 removal the powers found in
proceeding [See, 8 CFR § 252.2(b)]. The decision of whether to issue the INA § 252.
crewmen a conditional landing permit or permission to leave the vessel or
aircraft rests solely with the inspecting officer.
1. INA § 252(b)
f. A removal order issued under INA § 252(b) has the same weight as
a removal order issued by an IJ.
g.
b5
b5
stay
[maximum 29 days]. A crewman who is denied a conditional
landing permit after inspection, but somehow sneaks into the
United States undetected, is not within the reach of INA § 252(b),
but is nevertheless considered an absconder and should be tendered
to CBP, who will return him to the shipping line for removal from
the U.S. and also access a penalty under INA § 252(a). A crewman
who eludes inspection and sneaks into the Unites States is
considered to be present without inspection, chargeable under INA
§ 212, and therefore will be amenable to INA § 240 proceedings.
1. Consensual Encounter
a. A consensual encounter occurs when the individual approached The Fourth Amendment is
believes that he or she is free to walk away from and decline to not implicated when
officers merely approach
speak to the officer. and question a person, as
long as the encounter is
b. Remember, that an officer, like any other person, has the right to consensual in nature and
ask questions of anyone as long as the officer does not restrain does not involve coercion
the individual’s freedom to walk away. Properly done, a or the restraint of liberty.
[See, U.S. v. Jones, 990 F.
consensual encounter with a person will not constitute a seizure 2d 405 (8th Cir. 1993)]
under the 4th Amendment. Courts have held that actual direct
physical contact impeding an alien’s departure, and even
constructive restraint [e.g. by show of force, etc.] will convert a
consensual encounter into a constitutionally protected seizure.
2. Investigative Stops
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A stop for investigatory
purposes must be limited: it
a. An investigative stop occurs when a reasonable person would must be temporary and last no
believe that he was not free to leave in light of all of the longer than necessary to effect
surrounding circumstances. A vehicle stop is always considered a the progress of the stop. An
investigatory stop, which lasts
seizure for the purposes of 4th Amendment analysis. too long turns into a “defacto”
arrest, but no bright line,
b. The U.S. Supreme Court has ruled that police officers may in exists determining when this
occurs. There is no hard and
appropriate circumstances and in an appropriate manner, fast limit on the permissible
approach and temporarily detain a person for purposes of length of an investigative
investigating possible criminal behavior even though there is no detention. Rather, the test is
whether the detention is
probable cause to make an arrest. [See, Terry v. Ohio, 392 U.S. 1 temporary and whether the
(1968)] police acted with dispatch to
quickly confirm or dispel the
suspicions that initially
1. The Court in Terry distinguished an investigative “stop” induced the investigative
from an arrest, and a “frisk” of the outer clothing for detention. For example,
weapons from a full-blown search for evidence of a crime. fixed checkpoints by the
police or roadside detentions
2. The Court in Terry also stated that because a person may are not arrests. They are
be armed, police officers should have the power to “frisk” presumptively temporary and
the outer clothing for weapons, where the officer’s brief. Similarly, when a
person is merely approached
experience leads the officer to reasonably conclude that the by a police officer and
person is or may be armed and dangerous and nothing questioned about his or her
dispels the officer’s reasonable fear for his safety or the identity and actions, this is
only an accosting, not an
safety of others. This kind of seizure is justified in part, arrest. While a "seizure" in
because a “stop” and a “frisk” are considered to be “minor the constitutional sense occurs
inconveniences” in the interest of effective law when a police officer stops
and frisks a citizen, such an
enforcement. encounter—commonly called
a "Terry stop"—does not
constitute an arrest. [See,
5 Am. Jur. 2d Arrest § 5]
e. “Racial profiling” at its core concerns the invidious use of race or Racial profiling is the
inclusion of race as a primary
ethnicity as a criterion in conducting stops, searches, and other law determinant in the
enforcement investigative procedures. It is not merely wrong, but characterization of a persons
also ineffective. You may not use race or ethnicity as a selection considered likely to commit a
particular type of crime.
criterion for an investigative stop unless you have received specific Towards the end of the 20th
information that a suspect is of a certain race. [See, “Department of century in the United States,
Homeland Security’s Commitment to Race Neutrality in Law the practice fell into disfavor
with the general public as
Enforcement Activities” memorandum dated June 1, 2004]. abuses by law enforcement
came to light. Criminal
f. There is no set time limit for the length of an investigative stop. The Advocates are against the use
of racial profiling tactics by
officer must act with due diligence in resolving the particular the police. They argue that the
suspicion. Due diligence is characterized by steady, earnest, disproportionate number of
energetic and attentive application and effort toward a convicted minorities is due to
"racial profiling".
predetermined end. Where an officer is proceeding diligently
toward making a probable cause determination, courts are likely to See,
find that the officer’s conduct is reasonable even when events
beyond the officer’s his control caused delays. The officer’s http://en.wikipedia.org/wiki/R
acial_profiling
investigation, and thus the duration of the detention, should be
geared toward confirming or dispelling the suspicion of criminal
activity. Questioning is generally the primary method used to
accomplish the task.
e. Simultaneous Arrests
Where an Alien has been
1. Officers are tasked with enforcing both administrative and Advised of His
criminal laws and regulations. In some instances, there Administrative Rights
will be probable cause to believe that the suspect has under 8 C.F.R. § 287.3,
committed both administrative and criminal offenses at the and an Officer Wants to
Preserve the Alien’s
time of arrest. For example, an officer encounters a group
Statements for Criminal
of aliens at a gas station. During the course of questioning Prosecution, the Officer
he determines that they all entered illegally “through the Must Both Advise the
hills” that very day. Several aliens, however, all identify Alien of His Miranda
one particular individual in the group as their foot guide Rights and Must Clarify
and the driver of the car being gassed up at the station. The that the Alien Does, in
Fact, Have the Right to an
officer suspects this individual of illegally smuggling and Attorney at Government
transporting aliens. All of these individuals are subject to Expense If He Cannot
administrative arrest for a violation of section Afford One
212(a)(6)(A)(i) of the INA as aliens present without United States v. San Juan-
admission or parole, however, the person identified as the Cruz, 314 F.3d 384 (9th
Cir. 2002).
foot guide and driver has violated Title 8 U.S. Code
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1324(a) and is therefore likely to be prosecuted for his role
in the smuggling operation.
2. In these circumstances, the alien’s due process rights
concerning the criminal arrest must be observed first.
3. The administrative proceeding may not be used to delay or
circumvent the alien’s constitutional rights.
b5
CLASSROOM EXERCISE
b2High
Note: There is a difference of opinion amongst a few circuits, which have “The Supreme Court limited
the exercise of the authority
spoken on the issue, regarding the nature of the suspicion. The Second Circuit granted by the statute so that
immigration officers on roving
has said that you must suspect that the person is an illegal alien. The Eleventh patrol in border areas may stop
Circuit has said you need only suspect the person is an alien. Other circuits vehicles only if they are aware
have not addressed the matter so outside the 2nd Circuit we take the of specific articulable facts,
which, together with rational
longstanding viewpoint that the “statute has been interpreted to allow inferences from those facts,
reasonably warrant suspicion
immigration officers the right to seek to interrogate individuals reasonably that the vehicles contain aliens
believed to be of alien origin.” who may be illegally in the
country. Furthermore, the court
said that once an officer has
The rule for roving vehicular stops is different. The published case United reason to suspect that a
particular vehicle may contain
States v. Brignoni-Ponce, 422 U.S. 873 (1975), involved roving Border Patrol aliens who are illegally in the
agents that stopped a vehicle near the border and questioned the occupants country, he may stop the car
briefly and investigate the
about their citizenship and immigration status. The only basis for the stop that circumstances that provoke
was articulated by the agents at trial was the apparent Mexican ancestry of the suspicion, and may question
the driver and passengers
occupants. The Supreme Court ruled that a roving Border Patrol agent could about their citizenship and
stop a vehicle only if that agent is aware of specific articulable facts, together immigration status, as well as
asking them to explain
with rational inferences from those facts, that reasonably warrant suspicion that suspicious circumstances, but
the vehicle contains illegal aliens. Although apparent Mexican ancestry is a that any further detention or
search must be based on
relevant factor in obtaining reasonable suspicion, standing alone, it is consent or probable cause. In
insufficient to stop the individuals. reaching its decision, the court
noted that the Fourth
Amendment applies to all
The authority available to immigration officers under INA § 287(a)(1) should seizures of the person,
including seizures that involve
not be confused with roving vehicular stops or with temporary seizures that only a brief detention short of
traditional arrest, and that as
occur at Border Patrol Immigration Checkpoints. The Supreme Court has with other categories of police
determined that CBP can make routine vehicle stops to inquire into citizenship action subject to Fourth
Amendment constraints, the
and immigration status at reasonably located permanent checkpoints, without a reasonableness of such
warrant, and refer vehicles to secondary citizenship questioning without seizures depends on a balance
between the public interest and
particularized suspicion. [See, United States v. Martinez-Fuerte, 428 U.S. 543 the individual's right to
(1976).] personal security free from
arbitrary interference by law
officers.” [See, 63 American
While not invoking the more exacting requirements imposed by the U.S. Law Reports 180]
Supreme Court in the area of roving patrols, members of the Court have raised
the issue [by way of a dissenting opinion] for the need of a higher threshold in
the worksite enforcement arena. The Court could very easily be asked to
address
once again the use of INA 287(a)(1) during a worksite enforcement operation.
For now, however, for ICE officers/agents who are involved in the worksite
enforcement world, this authority is available during properly executed site
inspections conducted pursuant to 8 CFR 287.8(f)(1) and (2). Currently such
operations are briefed and conducted pursuant to the Court’s majority opinion in
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I.N.S. v. Delgado, 466 U.S. 210 [i.e. lawful presence in factory followed by
consensual encounters]. Delgado allows for consensual questioning and moving
from person to person in the worksite while in the process of checking status.
No 4th amendment issue is present as there is no seizure according to the Court.
The combined federal case law appears clear on the matter. If an officer/agent
reasonably suspects [based upon 2 or more articulable facts] that an
individual he has encountered is or may be an alien, detention is authorized
to interrogate about lawful presence. Note, however, that ICE has the ability to
require its officers and agents, as a matter of policy, to live by a “higher”
standard than that established by statute, regulation, and case law.
Accordingly, should ICE choose to issue nation-wide guidance for worksite
enforcement operations that required the officer/agent to reasonably suspect the
individual is either an alien unlawfully present in the United States or an alien
with status who is nevertheless inadmissible or removable for the United States
in order to detain (seize under the 4th Amendment) him, such a policy controls
the officer’s/agent’s scope of authority in that instance.
2. INA § 287(a)(2)
e. Once arrested, the alien shall be taken without unnecessary delay for
examination before an officer having the authority to examine aliens
as to their right to enter or remain in the U.S. This officer must be
someone other than the arresting officer, unless the sole exception to
standard practice mentioned in 8 CFR § 287.3(a) is warranted.
Although the regulations do not stipulate the exact personnel for
this, in practice, the examination of a warrantless arrest is generally
[as appropriate] conducted by the supervisory special agent,
supervisory patrol agent, or supervisor in detention and enforcement
responsible for the area where the arrest occurred.
h. Arrests made under INA § 287(a)(2) can also be made with arrest
warrants, where the alien is not likely to abscond or absent exigent
circumstances. In these situations, the administrative warrant of
arrest must be issued by one of the authorized immigration officers
specified in 8 CFR § 287.5(e)(2).
b. special agents;
c. deportation officers;
e. adjudications officers;
8. Arrests made under INA § 287(a)(4) can also be made with arrest
warrants where the alien is not likely to escape or absent exigent
circumstances. In these situations, a Federal District Court Judge or U.S.
Magistrate must issue the criminal warrant of arrest.
Important Note:
8 USC 1324(c) says that the Attorney General has the authority to designate which
immigration officers may make arrests for a violation of 8 USC 1324(a) -
Bringing In and Harboring Certain Aliens (alien smuggling). Pursuant to 8 CFR §
287.5(c)(5) Immigration Enforcement Agents (IEAs) may not at the present time
make arrests for violations of 8 USC 1324(a). This restriction is the result of a
policy decision made when the IEA position was established. INA § 287(a)(4)
authority cannot be used by an IEA to justify the presence of authority to make an
arrest for a violation of 8 USC 1324(a). A related restriction of authority is found
in 8 CFR § 287.5(e)(3) where the Attorney General has given IEAs the authority to
serve warrants of arrest for administrative immigration violations only, and not
immigration related criminal arrest warrants.
b. During this brief stop, the officer may question the driver and
occupants of a vehicle about their citizenship and immigration
status, ask for an explanation of the suspicious circumstances and
request consent to search the vehicle.
5. INA § 287(a)(3) also provides officers with the authority to enter onto
private lands (but not dwellings) within 25 miles from any external
boundary of the U.S. for the purpose of patrolling the border.
6. The term “patrolling the border” means “. . .to prevent the illegal entry
of aliens into the United States . . .conducting such activities as are
customary, or reasonable and necessary, to prevent the illegal entry of
aliens into the United States . . .” Border Patrol is tasked with the
primary responsibility of patrolling the border. DHS policy restricts
investigations and apprehensions on premises of schools, places of
worship, or funerals or other religious ceremonies. Enforcement
activities by Border Patrol in these sensitive areas requires prior written
approval from the Chief Patrol Agent except under exigent
circumstances.
b. special agents;
b2High, b7e
2. This evidence can be taken from, and the oath administered to any
person, including a USC, who has information about another
individual, whether that other individual is an alien or a USC.
2. Deadly Force
b2High
This fact sheet is intended to assist the public’s general understanding of the immigration court process in the
United States. It is not a substitute for legal advice, nor does it constitute any legal opinion by the Department
of Justice. It is not fully inclusive; does not address the many legal, regulatory, and court interpretations that
may affect individual cases; and may be subject to change as new laws and regulations are implemented.
The Executive Office for Immigration Review (EOIR) is responsible for adjudicating immigration cases.
Specifically, under delegated authority from the Attorney General, EOIR interprets and administers federal
immigration laws by conducting immigration court proceedings, appellate reviews, and administrative
hearings. EOIR consists of three components: the Office of the Chief Immigration Judge, which is
responsible for managing the numerous immigration courts located throughout the United States where
immigration judges adjudicate individual cases; the Board of Immigration Appeals (BIA), which primarily
conducts appellate reviews of immigration judge decisions; and the Office of the Chief Administrative
Hearing Officer, which adjudicates immigration-related employment cases. EOIR is committed to providing
fair, expeditious, and uniform application of the nation's immigration laws in all cases.
Immigration judge decisions are administratively final unless the case is appealed to the BIA. BIA decisions
are binding unless modified or overruled by the Attorney General or a federal court.
Removal Proceedings
The most common type of proceeding before EOIR is the removal hearing. In these hearings, the agency that
is responsible for enforcing federal immigration laws, the Department of Homeland Security (DHS), charges
and must prove that an alien is in the United States unlawfully and should be removed. EOIR does not have
jurisdiction over an alien’s case unless DHS files charging documents with EOIR.
If DHS charges an alien with an immigration law violation, it serves the alien with a charging document,
known as a Notice to Appear, ordering the individual to appear before an immigration judge. The Notice to
Appendix B
attorney at no expense to the government, and the consequences of failing to appear at scheduled hearings.
Generally, immigration court proceedings involve an initial “master calendar” hearing and, subsequently, an
“individual” hearing. During the master calendar hearing, the immigration judge ensures that the alien
understands the immigration violation charges and provides the alien information on available “pro bono”
(free of charge) or low-cost legal representation resources in the area. During the individual hearing, the
merits of the case are discussed before the immigration judge by the alien, or the alien’s legal representative,
and the DHS attorney who is prosecuting the case. In most cases, the immigration judge issues an oral
decision at the conclusion of the individual hearing.
Once a case is completed, if either the alien or DHS disagrees with the immigration judge’s decision, either
party or both parties may appeal the decision to the BIA. Information concerning appellate practice before the
BIA is available in BIA’s Practice Manual and the Questions and Answers Regarding Proceedings Before the
Board. If the alien disagrees with the BIA’s ruling, the alien may file an appeal in the federal court system. If
DHS disagrees with the BIA’s ruling, in rare instances, the case may be “certified” (referred) to the Attorney
General for review.
Bond Redeterminations
Another common proceeding is the bond redetermination hearing for aliens who are detained by DHS but
have pending immigration hearings with EOIR. Eligible aliens can ask an immigration judge to reduce the
amount of bond set by DHS, or to set a bond if DHS has determined that no bond should be set.
Relief from Removal
While almost all hearings deal with the issue of removal from the United States, the outcome of many
hearings depends on the availability of relief from removal, if any. Immigration law provides relief from
removal to aliens who meet specific eligibility criteria. In most removal proceedings, aliens concede that they
are removable, but then apply for one or more forms of relief from removal. In such cases, aliens must prove
that they are eligible for relief, such as asylum, adjustment of status, cancellation of removal, or other
remedies provided by immigration law.
Asylum
Asylum protection provides relief from removal to those individuals who are unable or unwilling to return to
their country of nationality 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.
When an individual seeks asylum during a removal proceeding, the immigration judge hears the applicant’s
claim and also hears any concerns about the validity of the claim raised by the government, which is
represented by a DHS attorney. The immigration judge then makes a determination of eligibility. If the
applicant is not found eligible for asylum, the immigration judge determines whether the applicant is eligible
for any other forms of relief from removal and, if not, orders the individual removed from the United States.
Expedited Removal
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) mandates that aliens
who arrive at a U.S. port of entry without travel documents or present fraudulent documents must be detained
and placed in expedited removal.
The expedited removal process allows an immigration inspector to remove from the United States certain
classes of aliens who are inadmissible. However, no aliens can be expeditiously removed from the United
States until they are read a sworn statement and acknowledge that they understand it, and are questioned
whether they have a concern or fear of being returned to their home country.
Aliens who express a fear of persecution during the expedited removal process receive a “credible fear”
interview with an asylum officer from the U.S. Citizenship and Immigration Services in DHS.
Aliens who are not found to have a credible fear of persecution by an asylum officer may request that an
immigration judge review the asylum officer’s negative determination prior to their removal from the
country. This review must be concluded within 24 hours whenever possible, but in no case later than 7 days
after the initial determination by the asylum officer. The review is limited solely to whether the aliens have a
credible fear of persecution.
Those persons found to have a credible fear are referred to EOIR for removal proceedings in which they may
apply for asylum before an immigration judge.
Convention Against Torture (CAT) protection relates to the obligations of the United States under Article 3 of
the United Nations Convention Against Torture––an international treaty provision designed to protect persons
from being returned to countries where they face torture. Under Article 3, the United States agrees not to
“expel, return, or extradite” a person to another country where he or she would be tortured.
CAT provides two separate types of protection: “withholding of removal” and “deferral of removal.” Both
provisions ensure that a person is not returned to face torture, but they do allow the government to remove the
person to a third country where he or she would not be tortured.
Withholding of removal prohibits an alien's return to a specific country. Withholding of removal can be
terminated only if the case is re-opened and the DHS establishes that the alien is not likely to be tortured in
that country.
Deferral of removal is a more temporary form of protection. Deferral of removal is granted to aliens who
likely would face torture but who are ineligible for withholding of removal––for example, certain criminals
and persecutors. Deferral of removal is more easily and quickly terminated if the individual no longer is
likely to be tortured in the country of removal. It also allows an individual who is subject to detention to be
detained.
CAT protection is not the same as asylum. The major differences are:
Individuals granted asylum can file for permanent resident status after 1 year and an asylee’s immediate
family members may be granted the same status. CAT protection does not grant either permanent resident
status or the ability to bring family members to the United States.
The Executive Office for Immigration Review (EOIR), an agency of the Department of Justice, oversees three
components which adjudicate matters involving immigration law matters at both the trial and appellate level.
Under the Office of the Chief Immigration Judge, more than 200 Immigration Judges located in 53
Immigration Courts nationwide conduct proceedings and decide individual cases. The agency includes the
Board of Immigration Appeals (BIA), which hears appeals of Immigration Judge decisions, and the Office of
the Chief Administrative Hearing Officer, which handles employment-related immigration matters.
This fact sheet summarizes the most frequently requested forms of relief that are available to an alien who has
been found to be removable. These descriptions are not fully inclusive and do not encompass the many
regulatory and court interpretations that determine actual applicability of relief in an individual case. Also,
the descriptions that follow are subject to change since Congress may legislate new laws. Accordingly, the
following summaries are intended only to assist the public’s general understanding of the types of relief from
removal, and interested parties should thus refer to controlling law and regulations for a precise and complete
understanding of the topics presented.
Discretionary Relief
Once an alien in proceedings is found to be removable, he or she, if eligible, may request one or more types of
discretionary relief. This section describes some types of discretionary relief that are available during a
hearing; administrative relief and judicial review after a hearing is completed are discussed below. The alien
has the burden of proving that he or she is eligible for relief under the law, and usually that he or she deserves
such relief as an exercise of discretion.
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Voluntary Departure
Voluntary departure is the most common form of relief from removal and may be
granted by Immigration Judges, as well as the Department of Homeland Security (DHS), which absorbed the
functions of the former Immigration and Naturalization Service. Voluntary departure avoids the stigma of
formal removal by allowing an otherwise removable alien to depart the United States at his or her own
personal expense and return to his or her home country, or another country if the individual can secure an
entry there. Immigration Judges will provide aliens information on the availability of this form of relief when
taking pleadings. It is important to note that aliens granted voluntary departure must depart within the time
specified by the Immigration Judge. Although an Immigration Judge has the discretion to set a shorter
deadline, aliens granted voluntary departure prior to the completion of removal proceedings must depart
within 120 days, and those granted such relief at the conclusion of removal proceedings must depart within 60
days. In addition, in order to avoid being penalized for choosing to appeal a decision rather than depart, the
BIA usually will extend an earlier grant of voluntary departure for 30 days. As with other forms of
discretionary relief, certain individuals will be found ineligible for voluntary departure, and those granted
voluntary departure who fail to depart are subject to fines and a 10-year period of ineligibility for other forms
of relief.
Cancellation of Removal
This form of discretionary relief is available to qualifying lawful permanent residents and qualifying non-
permanent residents. For lawful permanent residents, cancellation of removal may be granted if the
individual:
Has been a lawful permanent resident for at least 5 years;
Has continuously resided in the United States for at least 7 years after having been lawfully admitted; and
Has not been convicted of an “aggravated felony,” a term that is more broadly defined within immigration law
than the application of the term “felony” in non-immigration settings.
Cancellation of removal for non-permanent residents may be granted if the alien:
Has been continuously present for at least 10 years;
Has been a person of good moral character during that time;
Has not been convicted of an offense that would make him or her removable; and
Demonstrates that removal would result in exceptional and extremely unusual hardship to his or her
immediate family members (limited to the alien’s spouse, parent, or child) who are either U.S. citizens or
lawful permanent residents.
It is important to note that different standards are used in determining eligibility for victims of domestic
violence.
Asylum
Under section 208(a) of the Immigration and Nationality Act, the Attorney General may, in his discretion,
grant asylum to an alien who qualifies as a “refugee.” Generally, this requires that the asylum applicant
demonstrate an inability to return to his or her home country because of past persecution or a well-founded
fear of future persecution based upon his or her race, religion, nationality, membership in a particular social
group, or political opinion. However, an alien may be ineligible for asylum under certain circumstances,
including having failed to file an asylum application within an alien’s first year of arrival in the United States,
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being convicted of an aggravated felony, or having been found to be a danger to national security. Similar
forms of relief are Withholding of Removal and applications under the United Nations Convention Against
Torture.
Adjustment of Status
This form of discretionary relief is available to change an alien’s status from a non-immigrant to a lawful
permanent resident. Aliens who have been previously admitted into the United States can apply to DHS for
adjustment of status, while aliens in removal proceedings apply before an Immigration Judge. Several
conditions must be met, including that the alien is admissible for permanent residence and an immigrant visa
is immediately available at the time of application. Aliens who qualify for visas allowing an adjustment of
status are often petitioned for by a spouse (or another family member) or an employer. Certain individuals,
including criminals and aliens who fail to appear for proceedings or fail to depart after a grant of voluntary
departure, and those who were ordered removed may be ineligible for adjustment of status.
An alien may move to reopen or to reconsider a previous decision by filing a timely motion with an
Immigration Judge or the BIA. The central purpose of a motion to reopen is to introduce new and additional
evidence that is material and that was unavailable at the original hearing. A motion to reconsider seeks a
reexamination of the decision based on alleged errors of law and facts. Unless an exception applies, a party
may file only one motion to reopen and one motion to reconsider. With a few exceptions, a motion to reopen
proceedings must be filed within 90 days of the final removal order, while a motion to reconsider must be
filed within 30 days of the date of the final order. The filing of such motions does not suspend the execution
of the removal decision unless a stay is ordered by the Immigration Judge, the BIA, DHS, or the alien seeks to
reopen an in absentia order (a decision made when the alien was absent at the proceeding).
Stay of Removal
A stay of removal prevents DHS from executing an order of removal, deportation, or exclusion. Depending
on the situation, a stay of removal may be automatic or discretionary. An alien is entitled to an automatic stay
of removal during the time allowed to file an appeal (unless a waiver of the right to appeal is filed), while an
appeal is pending before the BIA, or while a case is before the BIA by way of certification. Except in cases
involving in absentia orders, filing a motion to reopen or reconsider will not stay the execution of any decision
made in a case. Similarly, filing a petition for review in Federal court also does not result in an automatic stay
of a removal order. Thus, a removal order can proceed unless the alien applies for and is granted a stay of
execution as a discretionary form of relief by the BIA, Immigration Judge, DHS, or a Federal court. Such a
stay is temporary and is often coupled with a written motion to reopen or reconsider filed with the
Immigration Court, the BIA, or an appeal to a Federal Circuit Court.
The BIA is the highest administrative body with the authority to interpret Federal immigration laws. The BIA
has jurisdiction to hear appeals from decisions of Immigration Judges and certain decisions of DHS. Either an
alien or DHS may appeal a decision from the Immigration Judge. In deciding cases, the BIA can dismiss or
sustain the appeal, remand the case to the deciding Immigration Judge, or, in rare cases, refer the case to the
Attorney General for a decision. A precedent decision by the BIA is binding on DHS and Immigration Judges
throughout the country unless the Attorney General modifies or overrules the decision. With respect to the
filing deadline, the appeal of an Immigration Judge’s decision must be received by 30 calendar days from the
date it was issued by the court.
Judicial Review
The Immigration and Nationality Act confers Federal courts jurisdiction over certain decisions appealed from
the BIA. However, subsequent laws have substantially restricted judicial review of removal orders. An alien
has 30 days from the date of a final removal decision to file a judicial appeal, which is generally filed with the
Court of Appeals. The procedures and applicability of judicial review in immigration cases are complex and
governed by a number of court decisions and interpretations that, in many circumstances, are not clearly
resolved. For an understanding of how judicial review might apply in a specific case, qualified legal counsel
should be consulted.