When Can Noncitizens Be Removed Without Seeing an Immigration Judge?

Procedures called reinstatement of removal, expedited removal, and administrative removal all allow the government to deport or remove a person without a hearing in immigration court.

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Although legal discussions regarding the removal (or deportation) of noncitizens from the U.S. tend to revolve around immigration court proceedings, the majority of noncitizen removals actually takes place outside this system. Such removals are issued directly by the Department of Homeland Security (DHS) through summary (or expedited) proceedings and are usually not reviewable by an immigration judge. They may, however, under extremely rare circumstances, be challenged in federal court.

Three Common Types of Removal Issued by DHS

There are three common types of removal issued directly by DHS (usually to noncitizens who will remain detained throughout the process):

  • reinstatements of previous removal orders
  • expedited removals for certain newly arrived noncitizens, and
  • administrative removals for certain noncitizen felons.

Other types of removal exist that do not require that the person be offered an appearance before an immigration judge (including so-called “stipulated removals” as well as removals of certain Visa Waiver program participants). However, those are, by comparison, either rare or difficult to track, and will not be discussed in this article.

Reinstatements of Removal

If you are a noncitizen who reentered or attempted to reenter the U.S. illegally after having been previously ordered removed from the country, you may be summarily removed by DHS. All DHS needs to do is to check your identity (based on your fingerprints), find your previous removal order, interrogate you, and then reinstate your previous order by making you sign a Form I-871, Notice of Intent/Decision to Reinstate Prior Order.

Certain noncitizens who are applying for adjustment of status (to get a green card while living in the U.S.) are not subject to this type of procedure, however — depending on their citizenship, length of residence, and other circumstances.

Specifically, if you are a citizen of Nicaragua, Cuba, El Salvador, Guatemala, or a former Soviet State, who is eligible for a law known as “NACARA,” or if you are related to a citizen of Haiti who adjusted status before March 2000, or if you have lived illegally in the U.S. since at least 1982, then you might be able to adjust status regardless of your prior order of removal and illegal reentry.

In addition, certain noncitizens who fear returning to their home country because of persecution or torture may avoid or defeat a reinstatement of removal by getting a “reasonable fear” interview in front of a DHS asylum officer (with a limited opportunity for review by an immigration judge).

Beyond that, there may be more “creative” ways of avoiding or defeating reinstatements of removal (including by requesting prosecutorial discretion, or by reopening your previous removal proceeding). You should consult an immigration attorney to fully explore your options.

Expedited Removal

Expedited removal is a summary removal process that DHS uses for certain newly arrived noncitizens (excluding green card holders, refugees, asylees, and certain Cuban citizens) who lack proper documentation or have used fraud to gain (or try to gain) admission to the United States.

For example, if you are caught flying to the U.S. on a fraudulent visa, or if you are caught trying to cross the border illegally from Canada or Mexico, then DHS officers of the U.S. Customs and Border Protection agency can immediately remove you by issuing a Form I-860, Notice and Order of Expedited Removal.

Likewise, you may be subject to expedited removal if you have already entered the U.S. but only for 14 days or less and are caught (by DHS officers of CBP or DHS officers of the U.S. Immigration and Customs Enforcement agency) within 100 miles of the border, or if you entered the U.S. by sea and are caught anywhere in the U.S. within the subsequent two years.

Note that DHS has some discretion to extend expedited removal from time to time to new classes of noncitizens who have been present in the U.S. for less than two years. You should consult an immigration attorney to be informed of any updates.

DHS has a lot of discretion not to use expedited removal proceedings. By highlighting any positive or humanitarian factor in your background, you might obtain a more lenient outcome (such as parole, or an authorization to withdraw your application for admission).

If you fear returning to your home country because of persecution or torture, you may be able to avoid expedited removal by getting a “credible fear” interview — which may allow you to convince a DHS asylum officer to let you apply for asylum or similar protections in immigration court.

Administrative Removals

If you are present in the U.S. as a nonresident (a noncitizen who does not have a green card), and DHS finds out that you have been convicted of an aggravated felony (which makes you removable), then you may be subject to administrative removal — issued by DHS through Form I-851, Notice of Intent to Issue Final Administrative Removal Order. (Here again, DHS has the discretion to place you in regular removal proceedings instead.)

Administrative removal proceedings can be more complex than the other two types of DHS removal. You should be given some fair opportunity to be represented by counsel.

As with reinstatements of removal, if you fear returning to your home country because of persecution or torture, you may be able to avoid an administrative removal by obtaining a “reasonable fear” interview with a DHS asylum officer.

Limited Review by Federal Courts

You should be able to challenge any reinstatement of removal, expedited removal, or administrative removal issued against you by filing (within 30 days of DHS’s decision to remove you) a petition for review in federal court (not immigration court). However, your grounds and chances of success may depend on the state or “jurisdiction” where you live.

As in any immigration proceeding, if you can prove that your case is one of mistaken status somehow (perhaps you are a U.S. citizen), then you should definitely obtain relief.

But if, for example, you are facing a reinstatement of removal and you find some controversy as to whether the way you reentered the country was really illegal, then different jurisdictions might disagree on the issue.

This may be the most complicated legal process you will ever face. You will need the assistance of a very experienced immigration attorney.

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