Specifies time and place of hearings Alleged Charged inadmissibility grounds Individual’s procedural rights 10 days to procure counsel – INA § 239(b)(3) Appeals from IJs decisions For a judicial review of removal you must file petition for review directly in the Court of Appeals at the federal level – INA § 242(a)(1) Burden of Proof Arriving alien bears burden of proving admissibility Standard of Unclear Maybe IIRAIRA requires “clearly and beyond a doubt entitled to be admitted and is not admissible” – INA § 240(c)(2)(A) Higher standard than beyond a reasonable doubt Entitled to Enter Qualifies under a category Undocumented Aliens Must show that you were lawfully admitted by clear and convincing evidence in a removal hearing – INA § 240(c)(2)(B) Expedited Removal Also called Summary Exclusion – INA § 235(b)(1) When does it apply? When CBP determines that arriving aliens are inadmissible under INA § 235(b)(1)(A)(i) Fraud – INA § 212(a)(6)(C) Lack of Proper Documents – INA § 212(a)(7) Asylum Screening Interviews – INA § 235(b)(1)(A)(i, ii) When aliens indicate Fear of persecution OR Intention to apply for asylum To determine whether case is strong enough to proceed Process Once found inadmissible under INA §§ 212(a)(6)(C) or 212(a)(7), ordered removed without further heading – INA § 235(b)(1)(A)(i) No administrative appeal or judicial review of admissibility or relief from removal – INA § 242(e)(5) Except returning LPRs, admitted refugees, and asylees – INA § 235(b)(1)(C) Other Special Removal Procedures National Security and Foreign Policy Cases Immigration officer or judge who suspects alien inadmissible under national security or foreign policy inadmissibility grounds “shall” order alien removed – INA § 235(c)(1) DHS Secretary automatically reviews orders If concludes inadmissible (on confidential info) orders removed without further hearing Terrorism
Common procedure to file petition for review in U.S. Court of Appeals for circuit where removal hearing held – INA § 242(b)(2) Must be administratively final to be reviewable – INA § 242(b)(2) Must have exhausted all administrative remedies, including appeal to BIA – INA § 242(d)(1) Must file within 30 days of final order – INA § 242(b)(1) Exceptions for removal orders based on criminal convictions and challenges to denial of discretionary relief – still reviewable on questions of law – INA § 242(a)(2)(B,C,D) Surge in Federal Filings Petitions for Review – INA § 242(a)(1) No more automatic stay of renewal Must move court in order to grant it – INA § 242(b)(3)(B) Result is that aliens join their motion for stay with their petition for review Exhaustion of remedies required Includes raising issue before BIA Res Judicata and Collateral Estoppel Filing from Overseas Permitted Source of Review Court decides merits solely on basis of administrative record – INA § 242(b)(4)(A) Scope of Review Findings of fact upheld unless “any reasonable adjudicator would be compelled to conclude” the contrary – INA § 242(b)(4)(B) Functional equivalent of substantial evidence test? INA upholds substantial evidence test standard for removal orders – INA § 240(c)(3) Execution of Removal Order Must be removed within 90 days of final order – INA § 241(a)(1) DHS Secretary may execute order if alien in prison for conviction of nonviolent offense before sentence completed if State consents – INA § 241(a)(4)(B) Alien’s cooperation in securing necessary travel documents important – INA § 274D Detention possibly mandatory for some aliens – INA § 241(a)(2) “Bag and Baggage” Letter for aliens not in DHS detention to report at specific time and Prosecutorial Discretion Removal Process Apprehension Formal Administrative Hearing Determination of Appropriate Relief Potential to Culminate in Federal Court Review Prosecutorial Discretion Comes in Prioritizing enforcement actions to achieve goals Aliens with serious crimes National Security Danger
Reasonable grounds to believe alien inadmissible or deportable on National Security Grounds – INA § 236A(a)(3) US Visit DHS’s U.S. Visitor and Immigration Status Indication Tech. System Fully operational for arrivals as of 2009 Implementation for Departures is still under discussion Applies to all aliens 14-79 Exceptions to tourist or business visitors Canadians Finger and digital photos taken of all Both consular offices during visa processing and immigration inspectors at ports of entry Also collected when aliens exit National Security: Enforcement and Profiling Enhanced Border Enforcement Most border enforcement focused on illegal immigration Also general law enforcement issues Post 9/11 increases in personnel, training, technologies Passenger Manifests (EBSVERA) Commercial airlines, sea transport companies required to give immigration inspectors passenger lists with prescribed details Profiling Definition Law enforcement strategies focusing on individuals with particular attributes believed to correlate with targeted misconduct Issues When attributes are protected from discrimination Race, Gender, Religion Need to balance government interest against harms of government-sponsored discrimination Equality v. Profiling Stopping everyone costs time, money, public support, and most people are innocent Failure to stop one terrorist causes massive social calamity time to make a choice, limited information possible Stereotypes more useful than not BUT claims of discrete individuals sacrificed to disembodied social interest Refugees and Asylees Refugee and Asylum Policy between compassion and self-interest Proper Function Humanitarian project to relieve suffering? Humanitarian rights ends, to deter violations or repair damage post facto? National self-interest, based in sovereignty? Flight from Persecution or Flight from Poverty Friendlier for refugees from Communist Block than countries friendly to the US Suspicion of Refugees Some see high level of fraudulent claims