Alien Removals and Returns: Overview and Trends
Released: 2015-02-03T00:00:00

Introduction

Regardless of how a country regulates its immigration, some lawfully admitted foreign nationals may violate the conditions proscribed for being in the country, and some foreign nationals may enter the country illegally. Thus, in the United States, as in other countries, the removal of unauthorized aliens and other aliens who violate the conditions under which they were admitted (e.g., overstaying their authorized period of stay, committing a crime while in the country) is central to immigration enforcement.

The removal and return of aliens to their country of nationality have become important policy issues for Congress, and tend to be key issues in debates about immigration reform. In 2012, there were an estimated 11.4 million resident unauthorized aliens in the United States; estimates of other removable aliens, such as lawful permanent residents (LPRs) who commit crimes, are elusive. More than 600,000 foreign nationals were repatriated from the United States in FY2013—including about 440,000 formal removals.

The Immigration and Nationality Act (INA) provides broad authority to the Department of Homeland Security (DHS) and the Department of Justice (DOJ) to remove certain aliens from the United States, including unauthorized aliens and lawfully present foreign nationals who commit certain crimes. The different removal processes are spelled out in several sections of the INA, which identifies two overarching reasons aliens may be removed from the United States: on the basis of inadmissibility or on the basis of deportability (see " Reasons for the Removal of a Foreign National "). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, P.L. 104-208 ), established new mechanisms by which to effectuate the removal of aliens who have violated the nation's immigration laws—including several streamlined processes. An alien's immigration status and whether the alien has engaged in certain specified activities (e.g., committed a particular criminal offense) determines which process is used. Lawful permanent residents are generally subject to the standard removal process where foreign nationals have their cases decided by an immigration judge. However, arriving aliens who have not been admitted into the country, as well as aliens within the United States who have committed specified criminal offenses, may be subject to more streamlined removal processes such as reinstatement of removal or expedited removal of criminal aliens.

This report provides an overview of the statutory framework for removal and briefly describes the standard removal process. It also describes several streamlined forms of removal, and two alternative forms of removal (often referred to as returns) that exempt aliens from certain penalties associated with formal removal: voluntary departure and withdrawal of petition for admission. In addition, the report discusses recent trends in removals and returns, and concludes with a summary of potential avenues for relief from removal.

This report does not provide any legal analysis on these topics and does not discuss court cases related to removal. It also does not discuss how removable foreign nationals are identified and located (e.g., the Criminal Alien Program), or how the government chooses which removable aliens to initiate removal proceedings against (i.e., prosecutorial discretion).

Reasons for the Removal of a Foreign National

The INA identifies two overarching reasons aliens may be removed from the United States: on the basis of inadmissibility or on the basis of deportability . Prior to the implementation of the IIRIRA, the INA included separate provisions governing the "exclusion" of aliens who were ineligible to enter the country (i.e., "excludable" persons) and the "deportation" of certain aliens within the United States (i.e., "deportable" persons). The IIRIRA created a single proceeding to cover both types of removable aliens. Nonetheless, the INA retains two separate grounds for removal: (1) for aliens who have not been admitted to the United States and are inadmissible under INA §212, and (2) for aliens who have been admitted to the United States (i.e., entered legally) and are deportable under INA §237(a). Taken together the grounds of inadmissibility and deportability form the grounds for removal (i.e., the statutory reason that an alien may be removed from the United States). The grounds of inadmissibility and deportability are similar but not identical, as outlined below. Whether foreign nationals facing removal are subject to the grounds of inadmissibility or the grounds of deportability depends upon their immigration statuses.

Any alien found to be inadmissible under INA §212 or deportable under INA §237 may be ordered removed. The INA describes procedures for making and reviewing such a determination, and specifies conditions under which some of these provisions may be waived. DHS officials may exercise certain forms of discretion in pursuing removal orders, and certain removable aliens may be eligible for permanent or temporary relief from removal. Nonetheless, some grounds for removal (e.g., criminal grounds, terrorist grounds) render aliens ineligible for most forms of relief and may make the alien eligible for a streamlined removal process (see " Streamlined Removal Processes ").

Grounds of Inadmissibility

Section 212(a) of the INA specifies broad classes of inadmissible aliens, including those who

have a "communicable disease of public health significance," have committed certain criminal offenses, are terrorists or national security concerns, are likely at any time to become a public charge (i.e., become indigent), are seeking to work without proper labor certification, are attempting to enter illegally or have previously violated immigration law, are ineligible for citizenship, or have been removed previously or were unlawfully present in the United States.

Generally, the grounds of inadmissibility are applied to foreign nationals found in the country who have not been admitted (e.g., those who entered illegally/without inspection). In addition, certain streamlined removal processes (such as expedited removal) can only be applied to aliens who have not been admitted to the United States.

Grounds of Deportability

In order for a lawfully admitted alien to be ordered removed, the government has to prove that the noncitizen has violated a ground of deportation (e.g., overstaying his or her term of admittance). The INA §237(a) specifies six broad classes of deportable aliens, including those who

are inadmissible at time of entry or violate their immigration status; commit certain criminal offenses, including crimes of moral turpitude, aggravated felonies, alien smuggling, and high-speed flight from an immigration checkpoint; fail to register (if required under law) or commit document fraud; are security risks (including aliens who violate any law relating to espionage, engage in criminal activity that endangers public safety, partake in terrorist activities, or assisted in Nazi persecution or genocide); become a public charge within five years of entry; or vote unlawfully.

Consequences of an Order of Removal

INA §241 describes the general consequences of an order of removal, including what must occur after one has been issued. Aliens under a final order of removal normally are required to depart the United States within 90 days and may be detained until the removal order is executed. Usually, the Secretary of DHS must remove an alien within 90 days of the alien receiving a final order of removal (also see " Removal Process "). Under most circumstances, INA §241 requires that aliens under a final order of removal be detained until the removal order is executed (i.e., until the alien is removed from the country). In addition, aliens who are not detained and cannot be removed within 90 days face other supervision requirements.

Following an order of removal, an alien is inadmissible to the United States for a minimum of five years after the date of the removal, and therefore is generally ineligible during the period of inadmissibility to return to the United States in the absence of an applicable exception. The period of inadmissibility is determined by the reason for the removal and the type of removal process used. For example, an alien who is ordered removed based on removal proceedings initiated upon the alien's arrival is inadmissible for five years, while an alien ordered removed after being apprehended within the United States is inadmissible for 10 years. The length of inadmissibility increases to 20 years in the case of an alien's second or subsequent removal order, and is indefinite in the case of an alien convicted of an aggravated felony.

Removal Processes

Absent additional factors, unlawful presence in the United States is a civil violation, not a criminal offense, and removal and its associated administrative processes are civil proceedings. Thus, aliens in removal proceedings generally have no right to appointed counsel (though they may be represented by counsel at their own expense). In addition, Congress may pass legislation that imposes immigration consequences retroactively.

Certain DHS personnel may initiate a removal process against an alien by presenting the alien with a notice to appear (NTA). The NTA outlines the INA provisions that the alien is charged with violating (i.e., one of the grounds of inadmissibility or deportability discussed in " Reasons for the Removal of a Foreign National ").

Upon the receipt of an NTA, foreign nationals may be detained during removal proceedings, and certain foreign nationals are subject to mandatory detention. Foreign nationals who are not subject to mandatory detention may be released on bond or their own recognizance. An alien who is eligible to be released on bond may request a bond redetermination hearing before an immigration judge to have the bond lowered, or to be given bond if it was denied by DHS. During the bond hearing, the alien must prove that he or she is not a flight risk or a danger to society. Bond hearings are not considered part of the removal process.

The standard removal process under INA §240 is a trial-like proceeding in which an attorney from DHS presents the government's case for why the alien should be removed and an immigration judge from the Department of Justice's Executive Office for Immigration Review (EOIR) determines whether the alien should be removed. The standard removal process is only one of several ways aliens may be removed from the United States. An alien may concede removability (i.e., accept stipulated removal) rather than undergoing the standard removal proceeding. In addition, an alien may be subject to one of several types of streamlined removal procedures, which generally include more-limited opportunities for relief and review than the standard removal process (see " Streamlined Removal Processes ").

Standard Removal Process (INA §240)

The standard removal process is a civil administrative proceeding in which an EOIR immigration judge determines whether an alien is removable. Immigration judges may grant certain forms of relief (see " Relief from Removal ") during the removal proceeding, and their removal decisions are subject to certain forms of review.

Apart from a possible bond hearing related to detention, generally an alien first appears in immigration court at a preliminary hearing. An alien who fails to appear for a removal hearing (absent exceptional circumstances) can be removed in absentia and becomes inadmissible for five years, as well as ineligible for relief from removal for 10 years. Some cases—such as i n absentia cases, cases where the respondent concedes removability, and cases where both the government and the alien agree to the relief—can be decided at the preliminary hearing stage. Otherwise, a time may be set for an individual merits hearing.

During the individual merits hearing, the government's attorney attempts to prove the charges on the NTA. The government and the alien can present witnesses, and the judge rules on whether the foreign national is removable from the United States and is eligible for relief from removal if requested by the foreign national. Generally, within 30 days after the decision, the government's attorney or the foreign national may appeal the decision to the Board of Immigration Appeals (BIA). After the BIA decision, the alien may appeal to a federal court.

Stipulated Removal (INA §240(d))

INA §240(d) allows for an immigration judge to enter a removal order for an alien who concedes removability without the alien undergoing a standard removal proceeding in front of an immigration judge. The foreign national must fill out a detailed form, which must be approved by DHS. Generally, only those who have no possibility of relief from removal accept stipulated removal. A stipulated removal order generally has the same repercussions as a removal order issued at the end of an immigration proceeding in terms of triggering the grounds of inadmissibility.

Streamlined Removal Processes

In 1996, Congress amended the INA to establish several streamlined removal procedures though which an alien could be removed with limited or no review by the immigration courts. These removal procedures tend to limit the types of relief available (see " Relief from Removal ") and judicial review, compared to hearings under the standard removal process. In recent years, these streamlined removal processes have accounted for a higher percentage of total removals than standard removals, and are responsible for most of the growth in the overall number of removals (see Figure 3 ).

Expedited Removal of Arriving Aliens (INA §235(b))52

Under expedited removal (INA §235(b)), an alien who lacks proper documentation or has committed fraud or willful misrepresentation of facts to gain admission into the United States is inadmissible and may be removed without any further hearings or review, unless the alien indicates an intention to apply for asylum or another form of removal based on a fear of persecution. Aliens from Western Hemisphere countries with which the United States does not have full diplomatic relations (e.g., Cuba) are excluded from expedited removal. In addition, under policy, unaccompanied minors are placed in expedited removal in very limited circumstances.

Aliens subject to expedited removal must be detained until they are removed and may only be released due to a medical emergency or, if necessary, for law enforcement purposes. Although under law the Secretary of Homeland Security may apply expedited removal to any alien who has not been admitted or paroled into the United States and who cannot show that he or she has been continuously present for two years, expedited removal has only been applied to aliens

arriving at ports of entry; arriving by sea who are not admitted or paroled; and who are present in the United States without being admitted or paroled, are encountered by an immigration officer within 100 air miles of the U.S. international land border, and have not established to the satisfaction of an immigration officer that they have been physically present in the United States continuously for the 14-day period immediately preceding the date of encounter.

The INA provides immigration protections to aliens who have a well-founded fear of persecution, most notably in the form of asylum status. Aliens who are in expedited removal and request asylum are given a "credible fear" hearing to determine if there is support for their asylum claim. Those who pass the credible fear hearing are placed into standard removal proceedings under INA §240. In addition, aliens who receive negative "credible fear" determinations may request that an immigration judge review the case. Aliens who have been subject to expedited removal are barred from reentering the United States for at least five years.

Expedited Removal of Aliens Convicted of Aggravated Felonies (INA §238)

Aliens who have been convicted of certain crimes are barred from most types of relief from removal, and, partially as a result of this, the INA contains provisions to accelerate the removal of noncitizens who have been convicted of such crimes. Generally, those who are removable because of a criminal act are subject to mandatory detention while awaiting removal. Aliens removed on criminal grounds are generally subject to bars on reentering the United States ranging from 10 years to indefinite, depending on the nature of the offense committed and whether they had been removed previously.

INA §238(a)(1) allows for removal proceedings for aliens convicted of certain crimes to be conducted at federal, state, and local correctional facilities. The goal of this provision is to be able to expeditiously remove the alien when the alien has completed his criminal sentence, and limit the amount of time that an alien must remain in DHS custody pending removal.

In addition, INA §238(b) authorizes the government to determine that certain noncitizens are deportable without having the decision on removability made by an immigration judge. To be eligible for removal under INA §238(b), an alien cannot be an LPR and must have been convicted of an aggravated felony. Although the alien is not entitled to a hearing before an immigration judge, the alien is entitled to

"reasonable" notice of the charges and an opportunity to inspect the evidence and rebut the charges; counsel, at no expense to the government; a determination that the foreign national is in fact the person named in the notice; and a record of the proceedings for judicial review.

Because foreign nationals removed under this provision have been convicted of at least one aggravated felony, they are indefinitely barred from reentering the United States.

Reinstatement of Removal (INA §241(a)(5))

Another streamlined removal process is for the government to reinstate a previously issued removal order. A foreign national who is found to have reentered the United States illegally after being removed or leaving under voluntary departure (see " Voluntary Departure (INA §240B) ") can have their prior removal order reinstated by DHS. The reinstatement order is not subject to review by an immigration judge and the foreign national is ineligible for all types of relief from removal with the exception of withholding of removal and a claim based on the Convention Against Torture (see " Temporary Types of Relief from Removal "). A person who was ordered removed but reentered the country legally is not subject to reinstatement of removal.

Alternative Forms of Removal (i.e., Returns)

Until FY2013, the majority of aliens apprehended along the Southwest border were not subject to the standard removal procedures or expedited removal (see " Statistics on Removals and Returns "); instead, the majority of these aliens were allowed to either undergo voluntary departure or withdraw their applications. Voluntary departure and withdraw of application are often referred to as types of returns rather than removals. In addition, some aliens within the country accept voluntary departure either as an alternative to having a judge render a decision regarding their removability or at the conclusion of their removal proceeding.

Voluntary Departure (INA §240B)

Some consider voluntary departure a type of relief from removal because it does not carry the same consequences (i.e., the same time bars for reentering the country or criminal consequences for those who reenter) as other types of removal. Nonetheless, unlike those who receive other types of relief from removal, aliens who are granted voluntary departure are not permitted to remain in the United States for an extended period of time.

The INA authorizes voluntary departure at two distinct times—before the conclusion of removal proceedings and at the conclusion of removal proceedings—with different requirements and restrictions. However, regulations implementing voluntary departure created three periods for seeking voluntary departure and established conditions for voluntary departure at each juncture. The periods are (1) before the initiation of removal proceedings, (2) after the initiation of removal proceedings but before the proceedings are concluded, and (3) at the conclusion of removal proceedings. An alien must request voluntary departure in order to receive it. Aliens who are removable because of a conviction for an aggravated felony or on terrorist grounds are ineligible for voluntary departure. Those who were granted voluntary departure but failed to depart within the specified time are ineligible for 10 years for voluntary departure and most types of relief from removal.

At the border, voluntary departure is available only to aliens from contiguous territories (i.e., Canada and Mexico), and aliens are escorted to the point of departure. DHS Customs and Border Patrol (CBP) inspectors can also permit aliens traveling through a point of entry (POE) to withdraw their applications for admission and return to their points of origin. Voluntary departure costs less than most types of removal procedures since, in most cases, the government does not have to pay for the foreign nationals' return to their home countries.

Withdraw of Application (INA §235(a)(4))

At the discretion of the government, an applicant for admission to the United States may be permitted to withdraw his or her application and depart immediately from the United States without being subject to the five-year bar on reentry. An alien may be permitted to withdraw the application if it is determined that it is in the best interest of justice that a removal (or expedited removal) order not be issued, and that the alien has both the intent and means to depart immediately from the United States. The alien's decision to withdraw the application must be made voluntarily. In general, an alien who has withdrawn an application for admission must be detained, either by DHS or the owner of the vessel (e.g., airline) on which he or she arrived, until departure.

Statistics on Removals and Returns

There are two sets of statistics regarding removals and returns of aliens from the United States. The first set is from DHS' Office of Immigration Statistics (OIS) and include removals and returns by both Immigration and Customs Enforcement (ICE) in the interior of the country and by CBP at the borders. Additionally, ICE produces its own statistics on removals that do not include CBP's statistics. CRS presents both sets of data because different information can be obtained from the manner in which each maintains and presents its data. For example, ICE is able to provide data on the grounds (i.e., main reason) for removal, which is not captured in data from OIS.

Overall, both sets of data present a similar picture of removals. The data show an increase in the total number of removals, driven mostly by an increase in the use of expedited removal processes and a decrease in the use of returns (i.e., voluntary departure and withdraw of application). The decrease in returns is most likely attributable to a policy change that places more aliens in removal processes rather than allowing them to withdraw their applications, and to a decrease in the total number of apprehensions along the Southwest border.

Aliens Removed and Returned Since 1995

In FY1995 the number of removals was significantly less than the number of returns, but since FY2011 the number of removals has outpaced the number of returns. In FY1995 there were just 50,924 removals compared to over 1.3 million returns. Between FY1996 and FY1998 the number of removals increased 151%, from 69,680 to 174,813, corresponding to changes made in IIRIRA that expanded the grounds for removal and tightened the standards for relief from removal. In addition, the changes made to the grounds for removal (i.e., the statutory reasons a foreign national can be removed) were retroactive. For example, some aliens had committed crimes prior to 1996 that were not removable offenses at the time, but the changes made in 1996 made these aliens removable. Although the number of returns remained relatively constant between FY1996 and FY1998 (about 1.5 million a year), and the number of removals more than doubled during the same period, the number of returns remained significantly higher than the number of removals.

With the exception of one year (FY2002), the number of removals increased between FY1997 and FY2009. The number of removals remained relatively stable between FY2009 and FY2011, and then increased again between FY2011 and FY2013. The number of removals declined between FY2013 and FY2014. Some of the overall growth in removals since FY2002 may be related to enforcement efforts in response to the terrorist attacks of September 11, 2001. In addition, funding for immigration enforcement increased during this period. The highest number of removals occurred in FY2013 (438,421).

In contrast, the number of returns has fluctuated over the past 25 years, and is at its lowest level since the late 1960s. Because returns are mostly of Mexican nationals who have been apprehended by the Border Patrol, they are closely tied with border patrol apprehensions ( Figure 1 ). The divergence between the number of returns and border patrol apprehensions since FY2012 may be partially attributable to the rise in the number of apprehensions of persons from countries other than Mexico. For example, foreign nationals from countries other than Mexico accounted for 47% of all border patrol apprehensions in FY2013, compared to 13% in FY2010. Another factor may be CBP's effort in recent years to promote "high consequence" enforcement for unauthorized Mexicans apprehended at the border (this is known as the Consequence Delivery System). Historically, immigration agents permitted most Mexicans apprehended at the border to voluntarily return to Mexico without any penalty. Since 2005, CBP has limited voluntary returns in favor of formal removals (e.g., standard removal proceedings, expedited removal) and criminal changes (e.g., for illegal entry or re-entry after deportation).

With the exception of FY2003, the number of returns exceeded 1 million persons a year between FY1997 and FY2006. Since FY2004 the number of returns has steadily decreased to a low of 162,814 in FY2014. Notably, FY2011 was the first year since FY1941 that the number of returns was less than the number of removals.

Removal Statistics Since FY2002

With certain exceptions, a removal proceeding under INA §240 is, according to the statute, the "exclusive procedure" for determining whether an alien should be removed from the United States. However, as discussed in this section, there has been a recent trend toward using expedited procedures.

OIS data show that the number of removals more than doubled between FY2002 and FY2009, from 165,168 to 393,457. The number of removals then decreased by approximately 8,000 between FY2009 and FY2010, and then increased more than 30,000 between FY2010 and FY2012. According to OIS, the highest number of removals occurred in FY2013.

As Table 1 shows, statistics provided by ICE present a slightly different picture. According to ICE data, total removals increased more than threefold between FY2002 and FY2012, from 122,587 to 409,849, and then decreased in FY2013 and FY2014. The largest proportional increases in removals occurred between FY2005 and FY2008. Removals increased 15% between FY2005 and FY2006, 40% between FY2006 and FY2007, and 27% between FY2007 and FY2008. Between FY2012 and FY2014, the number of removals decreased 23%, to the lowest level since FY2007.

Interestingly, ICE appears to have accounted for the overwhelming majority of all DHS' removals between FY2007 and FY2012; this was not the case between FY2002 and FY2006 or in FY2013 and FY2014. In other words, the growth in removals between FY2002 and FY2006 and between FY2012 and FY2013 was driven by removals of those aliens apprehended at or between ports of entry. The decline in removals between FY2013 and FY2014 was solely a result of the decline in those removed by ICE.

Removals by Type

OIS and ICE data show similar trends regarding the increasing use of more streamlined removal processes and the decrease in the number of removals processed by the immigration courts.

OIS Data

As shown in Figure 2 , the numbers of all types of removals increased between FY2004 and FY2013. The numbers of expedited removals of arriving aliens and reinstatements have increased significantly since FY2004, reaching their highest levels in FY2013. There were 193,032 expedited removals and 170,247 reinstatements in FY2013. Since FY2004, the number of aliens subject to expedited removal increased approximately threefold and the number of reinstatements of removal orders more than doubled. The number of standard removals, voluntary departures, and expedited removals of criminal aliens ("other removals") increased between FY2004 and FY2011, and then decreased in FY2012 and FY2013. Thus, since FY2010 the increase in the total number of removals has been driven exclusively by the increases in expedited removals of arriving aliens and reinstatements.

Standard removals, voluntary departures, and expedited removals of criminal aliens ("other removals") accounted for 17% of all removals in FY2013, while expedited removals comprised 44% of those removed and reinstatements accounted for almost 39% of all removals (see Figure 3 ). Comparatively, approximately 44% of all removals were other removals in FY2004; since then these types of removals have comprised a smaller and shrinking proportion of the removed population. Expedited removals accounted for approximately 21% of those removed in FY2004, but 35.7% of all removals in FY2005. The increase in the proportion (and overall numbers) of expedited removals at that time may be attributable to the expansion of the categories of aliens subject to expedited removal. Reinstatements declined as a percentage of removals between FY2004 and FY2005, and then steadily increased. Thus, as discussed, the increase in removals during the past decade has been driven by an increase in the use of expedited removals and reinstatements of removal orders.

ICE Data

The data from ICE are presented differently than those from OIS simply by way of how the entities maintain their data. As shown in Figure 4 , more than 90% of those repatriated in FY2013 were subject to removal, while approximately 10% were classified as returns. Of the 332,538 aliens formally removed (i.e., not given voluntary departure or allowed to withdraw their application) by ICE in that year, 35% (115,940) were removed under the INA grounds of deportability and 65% (216,598) were removed under the INA grounds of inadmissibility.

Returns (e.g., voluntary departure, voluntary return witnessed by ICE), as both a percentage of all removals (i.e., removals and formal returns together) and an absolute number, decreased between FY2008 and FY2012. Notably, the overall decrease in removals between FY2012 and FY2013 was driven by a decrease in the number of returns (see Figure 4 ).

In addition, of the aliens formally removed (as opposed to returned) since FY2008, the overwhelming majority have been removed under the grounds of inadmissibility rather than the grounds of deportability. Nonetheless, there has been an increase in the proportion of those removed under the grounds of deportability over the six years, from 21% in FY2008 to 35% in FY2013.

Removals by Country

Over the 10-year period from FY2004 through FY2013, the majority of removals were of Mexican nationals (70.5%) (see Figure 5 and Table A-1 ). In FY2013, four countries accounted for approximately 96% of all removals: Mexico (71.8%), Guatemala (10.7%), Honduras (8.3%), and El Salvador (4.8%). No other country represented more than 1% of all removals in FY2013. Over the 10-year period there was a significant increase in the number of people removed to those countries. The number of people removed from El Salvador more than doubled over the 10-year period, while the number of people removed from Honduras more than tripled, and the number of people removed from Guatemala increased more than four-fold. (See Table A-1 .) The number of those removed from Mexico increased by 79%, much less of a percentage increase than for the three Central American countries.

Outcomes of Immigration Proceedings

In an immigration proceeding, an immigration judge must decide as part of the standard removal process whether the charges against an alien should be sustained. If the charges are not sustained or the alien establishes eligibility for naturalization, the judge terminates the case. If the charges are sustained, the judge determines whether to order the alien removed, grant voluntary departure, or grant relief (discussed in the next section). In addition, there are some cases that are completed without the immigration judge rendering a decision. Most of these cases are administrative closures. As Figure 6 shows, in FY2013 the majority of completed cases resulted in removals (voluntary departures are included in removals), while 18% of the completions were other (mostly administrative) closures. In addition, approximately 13% of the decisions were terminations, and 15% were grants of relief.

Relief from Removal

There are mechanisms under the INA that allow certain removable aliens to remain in the United States, either permanently or temporarily. This section provides an overview of the types of relief from removal available under the INA. It begins with a discussion of the types of relief that confer or can lead to lawful permanent resident (LPR) status for an alien. The discussion then shifts to types of relief from removal that allow aliens to remain in the United States but do not confer an immigration status that would allow them to remain in the country permanently. Aliens in removal proceedings may apply for more than one type of relief. Among the proceedings initially decided by an immigration judge in FY2013, 40% of aliens had applications for some type of relief from removal.

Permanent Relief from Removal

Some types of relief from removal allow an alien to adjust to LPR status either immediately or at a later time. LPRs, also known as immigrants, are foreign nationals who come to live permanently in the United States.

Cancellation of Removal

Cancellation of removal confers LPR status on certain removable noncitizens who have substantial ties to the United States or are of humanitarian concern (i.e., battered aliens). In general, an alien applying for cancellation of removal must have substantial ties to the United States, be of good moral character, and not have been convicted of a crime that makes him or her removable. Requirements differ for aliens who are LPRs and aliens who are nonimmigrants or unauthorized aliens. For example, nonimmigrants or unauthorized aliens have to demonstrate that their removal would cause extreme and unusual hardship to their families in the United States. This requirement does not apply to LPRs. (For a discussion of the different types of cancellation of removal, see Appendix B .) In addition, the criminal offenses that make an alien ineligible for cancellation of removal are generally broader for nonpermanent residents than for permanent residents.

Applications for cancellation of removal can only be made in removal proceedings, and decisions to grant relief are made on a case-by-case basis. Because cancellation of removal is a discretionary form of relief (i.e., it is granted at the discretion of an immigration judge), there is no fixed standard of who merits relief. The burden is on the alien to show that he or she is eligible for and deserves the relief. With few exceptions, grants of cancellation of removal are limited to 4,000 LPRs and 4,000 nonpermanent residents each fiscal year. There were 3,542 LPRs and 3,922 non-LPRs who received cancellation of removal in FY2013.

Defensive Asylum106

Foreign nationals seeking asylum must demonstrate a well-founded fear that if they were returned home they would be persecuted based upon one of five characteristics: race, religion, nationality, membership in a particular social group, or political opinion. Foreign nationals arriving or present in the United States may apply for asylum with U.S. Citizenship and Immigration Services (USCIS) after arrival into the country (affirmative claims), or they may seek asylum before an immigration judge during removal proceedings (defensive claims). This section focuses on defensive claims for asylum since those only occur once someone is placed into removal proceedings.

Defensive applications for asylum are raised when a foreign national in removal proceedings asserts a claim for asylum as a defense to his or her removal. Generally, the alien raises the issue of asylum at the beginning of the removal process. Aliens who are granted asylum may apply for LPR status after one year.

Foreign nationals who participated in the persecution of other people are excluded from receiving asylum. The INA outlines other conditions for mandatory denials of asylum claims, including the following cases: the alien has been convicted of a serious crime and is a danger to the community; there are reasons for believing that the alien has committed a serious nonpolitical crime outside the United States; the alien has been firmly resettled in another country; or "there are reasonable grounds for regarding the alien as a danger to the security of the United States." Under statute, an alien who has been convicted of an aggravated felony is considered to have been convicted of a serious crime.

There were 21,717 foreign nationals who requested asylum before an immigration judge during removal proceedings in FY2013. During the same year, immigration judges rendered decisions in 8,833 removal cases where a foreign national requested asylum, and the judges granted asylum in 30% of those cases.

Adjustment to LPR Status

Adjustment of status is another type of permanent relief from removal. This is the process of becoming an LPR in the United States without having to go abroad to apply for a visa. At their discretion, immigration judges may adjust the status of a non-lawful permanent resident alien if certain requirements are met: (1) the alien is the beneficiary of an approved visa petition for LPR status based on family or employment ties; (2) an immigrant visa is immediately available; and (3) the alien is not otherwise inadmissible. There were 3,868 foreign nationals in immigration proceedings who received adjustment of status in FY2013.

Temporary Types of Relief from Removal

Several types of relief from removal permit an alien to remain in the United States for a temporary, but unspecified, period of time. These types of relief are generally given to foreign nationals until conditions in their home countries change so that it is safe for them to return.

Withholding of Removal

Withholding of removal is closely related to, but different from, asylum. The INA prevents the U.S. government from removing an alien to a country where the government has determined that the alien's life would be threatened because of his or her race, religion, nationality, membership in a particular social group, or political opinion. Whereas asylum is a discretionary form of relief, an immigration judge must grant withholding if the alien meets the requirements. Under INA §241(b)(3) an applicant for asylum is also an applicant for withholding of removal. An alien is ineligible for withholding of removal if

the alien ordered, incited, assisted, or otherwise participated in the persecution of another individual; the alien was convicted of a particularly serious crime and is a danger to the community; there is serious reason to believe that the alien committed a serious nonpolitical crime before arriving in the United States; or there are reasonable grounds to believe that the alien presents a security risk to the United States.

Unlike asylum, withholding of removal is not a pathway to LPR status, as the relief is temporary. Foreign nationals granted withholding of removal may be removed to a third country provided that the country will allow their entry. There were 1,518 grants and 9,983 denials of withholding of removal (i.e., a 13% grant rate) in FY2013.

Convention Against Torture

The United States is a party to the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). CAT Article 3 requires that no State Party shall expel, return, or extradite a person to another country where "there are substantial grounds for believing that he would be in danger of being subjected to torture." The regulations implementing CAT prohibit the removal of aliens to countries where they would more likely than not be subjected to torture.

If country conditions change and the U.S. government believes the foreign national would no longer face torture in the country, the foreign national can be removed. Although some categories of foreign nationals are generally ineligible to receive asylum or withholding of removal (e.g., those aliens removable on security-related grounds or who have been convicted of certain criminal offenses), CAT protections prevent the removal of any foreign national to a country where he or she would be more likely than not to face torture. Of the cases where a decision on the aliens' applications for CAT protections was made by an immigration judge, CAT was granted in 506 cases and denied in 9,575 cases.

Temporary Protected Status124

Temporary Protected Status (TPS) is blanket relief that may be granted, provided that doing so is consistent with U.S. national interests, under the following conditions: there is ongoing armed conflict posing serious threat to personal safety; a foreign state requests TPS because it temporarily cannot handle the return of nationals due to environmental disaster; or there are extraordinary and temporary conditions in a foreign state that prevent aliens from returning.

The Secretary of Homeland Security can issue TPS for periods of 6 to 18 months and can extend these periods if conditions do not change in the designated country. To receive TPS, eligible foreign nationals must register with USCIS. TPS is not an immigration status, and aliens who receive TPS are not on an immigration track that leads to LPR status. As of December 2014, 11 countries have TPS.

Deferred Enforced Departure

Deferred Enforced Departure (DED) does not confer an immigration status. The granting of DED is not based upon any specific statutory authority, but instead is typically premised upon the Executive Branch's independent constitutional authority. The discretionary procedures of DED are used to provide relief the Administration feels is appropriate by balancing judgments regarding foreign policy, humanitarian, and immigration concerns. Aliens covered by DED are usually not subject to removal from the United States for a designated period of time. Unlike TPS, aliens do not register with USCIS, but receive DED when they are in removal proceedings. The President sets the parameters of DED. For example, the President may authorize that aliens with DED receive work authorization. Only Liberians currently have DED, which is set to expire on September 30, 2016.

Deferred Action

Deferred action is not an immigration status nor does it have a statutory authority; it is a form of administrative discretion. DHS may decline to institute removal proceedings, terminate proceedings, or decline to execute a final order of removal. Approval of deferred action means that no action will be taken (for a specified time or indefinitely) against an apparently removable alien. For example, under an initiative known as Deferred Action for Childhood Arrivals (DACA) certain individuals without a lawful immigration status who were brought to the United States as children and meet other criteria may be granted deferred action for two years, subject to renewal.

Conclusion

The Immigration and Nationality Act contains several different processes to effectuate the removal of aliens, as well as mechanisms to allow select aliens to remain in the United States either temporarily or permanently. During the previous two Administrations there has been a concerted effort to increase the number of removals by increasing the use of streamlined removal processes and decreasingly allowing voluntary departure and withdraws of application. If Congress considers reforms to the immigration system, the criteria and mechanisms for removing aliens from, and authorizing aliens to remain in, the United States may become central issues.

Appendix A. Removals by Country: Top 10 Countries

Appendix B. Types of Cancellation of Removal

Cancellation of removal was created in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, P.L. 104-208 ). It replaced two other forms of relief from removal, and the eligibility requirements are generally tighter for those who do not have LPR status than they were in the forms of relief it replaced. Certain aliens are ineligible for cancellation of removal, including those who are removable on security or terrorism grounds and those who have previously received cancellation of removal.

INA §240A(a) gives the Attorney General the ability to cancel the removal of an alien who is inadmissible or deportable and adjust the alien's status to LPR if the alien

has been an LPR for at least five years, has resided in the United States continuously for seven years after being admitted as an LPR, and has not been convicted of an aggravated felony.

The Attorney General may also cancel the removal of an alien who is inadmissible or deportable and adjust the alien's status to LPR if the alien

has been physically present in the United States for a continuous period of 10 years prior to the date of application for relief; has been a person of good moral character; has not been convicted of a criminal offense that would make the alien inadmissible or deportable, or convicted of an offense related to document fraud or falsely claiming citizenship; and establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child who is a U.S. citizen or LPR (i.e., the hardship cannot be to the alien).

There are special rules for battered alien spouses and children. Specifically, the Attorney General may cancel the removal of a battered alien spouse or child who is inadmissible or deportable and adjust the alien's status to LPR if the alien

has been physically present in the United States for a continuous period of at least three years immediately preceding the date of such application ; has been a person of good moral character; is not inadmissible on criminal or security grounds, or deportable for marriage fraud, criminal offenses, false documents, or security grounds; and has not been convicted of an aggravated felony; and establishes that the removal would result in extreme hardship to the alien, the alien's child, or the alien's parent.

Extreme hardship is evaluated on an individual basis, taking into account the particular facts and circumstances of each case. To establish extreme hardship, an applicant must demonstrate that deportation would result in a degree of hardship beyond that typically associated with deportation. Under regulation, applicants are encouraged to cite and document all applicable factors in their applications for cancellation of removal, as the presence or absence of any one factor may not be determinative in evaluating extreme hardship. Adjudicators should weigh all relevant factors presented and consider them in light of the totality of the circumstances.

The Nicaraguan Adjustment and Central American Relief Act (NACARA) created a special cancelation of removal provision for certain Central Americans and Eastern Europeans. This provision generally mirrors the suspension of deportation relief that was available before the enactment of IIRIRA in 1996. Reportedly, USCIS believes that nearly all qualifying NACARA applications have been adjudicated.