Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA"), which amended the Immigration and Nationality Act ("INA"), "removal proceedings" are the means by which non-U.S. citizens - "aliens" or "non-citizens" - are expelled from, or kept from entering, the U.S.
Usually, a hearing is held and an immigration judge (IJ) determines if an alien is "inadmissible" or "deportable." However, there are times when no hearing is needed, that is, there are times when an alien can be removed from the country (or denied admission) without the alien having the chance to explain his or circumstances. Specifically, no hearing is required in the:
- "Expedited Removal" process, and
- "Administrative Removal" process
Because no hearing is required in these instances, it is vital that you understand these things so that you can try to stop the deportation/removal by yourself or immediately get help from an experienced immigration law attorney.
Expedited removal is the procedure by which immigration officers may summarily determine that an alien is not admissible to the U.S. Inadmissibility can be based upon:
- Misrepresentation by the alien regarding his or her eligibility to enter the U.S., such as when the alien, while at a port of entry or border station, falsely tells an immigration officer that he or she had not been removed or deported from the country in the past, or
- Documentation issues, such as when an alien gains entry to and remains in the U.S. through false or forged documents, such as a visa
If an alien is determined to be inadmissible in these circumstances, the immigration officer must order the alien removed from the United States without further hearing or review.
However, if the alien tells the immigration officer that he or she has a fear of persecution in his or native country or that he or she intends to apply for asylum, the immigration officer must refer the alien for an interview by an asylum officer. If the alien is determined to have a credible fear of persecution, he or she may then be placed in formal removal proceedings, where a hearing will be held and the alien is given an opportunity to make a case for remaining in the U.S.
Expedited removal may also be applied to some aliens who are caught within the borders of the U.S. The Department of Homeland Security ("DHS") can use the expedited removal procedures on non-citizens who were not properly admitted to the country if they cannot convince an immigration officer that they were in the United States continuously for two years before their inadmissibility was discovered.
Aliens who are expelled from the country through the expedited removal process are barred from re-entering the U.S. for a period of 5 years, and even longer (up to 20 years), if they've been removed more than once through expedited removal procedures.
Special expedited removal procedures exist for aliens who have been convicted of crimes. The INA requires DHS to expedite the removal of aliens convicted of crimes, so expedited removal proceedings can be held at federal, state, and local correctional facilities for aliens convicted of specified crimes, such as:
- Most drug-related crimes
- Aggravated felonies, like murder, rape, or sexual abuse of a minor
- Crimes involving firearms
The idea of expediting the removal of aliens with criminal convictions is to have such aliens removed from the country as soon as possible, but after they've served their prison terms.
Administrative Removal of Certain Aliens
Administrative removal applies to aliens convicted of aggravated felonies who are not, when removal proceedings begin, either:
- A lawful permanent resident, that is, an alien with a "green card," entitling them to live and work in the U.S. indefinitely, or
- A conditional permanent resident, that is, they're married to a U.S. citizen or a lawful permanent resident and their marriage is less than two years old
An alien in administrative removal proceedings is not entitled to a hearing before an IJ. However, he or she must be given:
- Notice of the charges and the crimes
- An opportunity to inspect the evidence and to rebut or disprove the charges
- An opportunity to get a lawyer, at his or her expense
Questions for Your Attorney
- My brother came into the country illegally and is currently being deported by the DHS. Is it too late for him to formally seek admission into the U.S.?
- My husband was deported from the U.S. last year after he served a prison sentence for a crime. Is there any way he can come back to the country?