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All About Removal OrdersRebecca Scholtz and Michelle Mendez

Agenda

What are the different ways a non-citizen may be subject to a removal order, including orders that are not from an IJ? Is it possible your client has a removal order and doesn’t know it? We will discuss:

1) Common types of removal orders;

2) How you can determine if your client has a removal order; and

3) How removal orders impact eligibility for benefits and exposure to immediate arrest and removal from the United States.

Types of Removal Orders• DHS Orders of Removal

– Expedited Orders of Removal

– Final Administrative Removal Orders

• Applies to non-LPRs who have been convicted of an “aggravated felony.” INA § 238(b)

• DHS has discretion to initiate § 240 removal proceedings even if § 238(b) could apply

– Reinstatement of Prior Removal Order. INA §241(a)(5)

• IJ orders of Removal

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Expedited Orders of

Removal Issued by

a DHS Official

Authority for

Expedited Removal• The Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 created expedited removal.

• DHS has the authority to apply at POE or place other than a POE to those inadmissible for misrepresentations and false claims to U.S. citizenship or lack of valid entry documents who have not been admitted or paroled, and cannot show that they have been continuously present in the United States for two or more years. INA §235(b)(1)(A)(i)-(iii).

The Scope of Expedited Removal

• Broad potential scope under statute v. more narrow scope under past administrative policies– Consider Jan./Feb. 2017 EOs/memos stated intent to

expand

• Examples of people NOT subject to expedited removal– Unaccompanied children

– People who entered after admission or parole

– People who have been in the United States for two years or more prior to the encounter

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Other Border Interactions That

Are NOT Expedited Removal

• Just because a person had an encounter with an immigration officer at/near the border and was returned does not necessarily mean they have a removal order. Examples:

– “Voluntary Return”

– Withdrawal of application for admission at POE

• Also consider whether person may have been subject to criminal prosecution for immigration violation, in addition to removal

Options to Fight Exp. Removal?• An expression of fear to the DHS official should prompt

an interview by an Asylum Officer (AO) to assess credible or reasonable fear. 8 C.F.R. § 235.3(b)(4)

• If the AO determines the non-citizen has a credible or reasonable fear, the expedited removal order is vacated and the non-citizen is placed in INA § 240 proceedings before the IJ

• If the AO determines the non-citizen does NOT have a fear, the IJ may review this decision. 8 C.F.R. §208.30(g); 8 C.F.R. § 208.31(g)

• DHS may reconsider a negative credible fear finding. 8 CFR § 1208.30(g)(2)(A)

When does CFI or RFI apply?CFI

• If the person is subject to expedited removal, does not have a prior order of removal, and expresses fear, a DHS officer should refer the person to an AO for a CFI.

RFI

• If the person was previously removed or voluntarily leaves after getting an order and then re-enters the U.S. illegally, a DHS officer can reinstate the prior order of removal. INA § 241(a)(1)(5). But if the person expresses fear, a DHS officer should refer the person to an AO for an RFI.

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Credible/Reasonable Fear Process

Credible Fear Interview• Non-citizen bears the burden of proof to establish a

credible fear of persecution or torture

• If the AO determines there’s a “significant possibility”

– as defined at 8 C.F.R. §§ 235(b)(1)(B)(v) and

208.30(e)(3) – that non-citizen can establish eligibility

for asylum or withholding of removal/CAT, DHS must

initiate removal proceedings under INA § 240

• The significant possibility standard requires showing a

“substantial and realistic possibility of succeeding”

before the IJ, but does not require applicant show it is

more likely than not to succeed before the IJ

Reasonable Fear Interview• Non-citizen bears the burden of proof to

establish a reasonable fear of persecution or

torture

• If the AO determines there is a reasonable

possibility that he or she would be persecuted

or tortured in the country of removal. 8 C.F.R.

§ 208.31(c).

• “The ‘reasonable possibility’ standard is the

same [as] . . . ‘well-founded fear.’”

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Bond• Those with expedited removal orders are NOT

bond eligible unless they receive a positive

credible or reasonable fear determination and are

placed in INA § 240 removal proceedings

– CFI: Matter of X-K-, 23 I. & N. Dec. 731 (BIA 2005)

– RFI: Guerra v. Shanahan, 831 F.3d 59 (2d. Cir. 2016)

• Must show does not pose a threat to national

security, a danger to the community, or a flight

risk

Hypothetical # 1

• Ana is the mother of 3 U.S. Citizen children who entered the United States without permission in 2004 from Mexico. She remembers that during the week prior to her entry, she made a number of attempts to enter the United States. Each time, she was detained by an immigration officer, fingerprinted, photographed, and returned to Mexico.

• What questions should we ask? What other steps could we take to determine what happened?

Hypothetical #2

• Carlos, a citizen of Guatemala, attempted to enter the United States without permission in 2006. He remembers that he was detained by immigration officers near the border and spent several months in a jail before he was returned to Guatemala. He does not remember if he was asked about his fear of return. He came back illegally shortly after.

• Is he subject to a CFI or an RFI? What will you do to ensure he gets the interview? How will you prepare Carlos for the interview?

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Hypothetical #3

• John is a citizen of Jamaica. He obtained a tourist visa in 2008 and flew to JFK to visit his U.S. citizen wife and children who live in New York. At the airport, he was taken to secondary inspection and questioned for a long time by immigration officers. He remembers that he had to sign some papers and then was put on a flight back to Jamaica.

• What questions should we ask? What other steps could we take to determine what happened?

Removal Orders

Issued by an

Immigration Judge,

INA § 240

Types of IJ Orders

• Stipulated orders of removal

• Removal orders at the conclusion of

removal proceedings

• Violations of voluntary departure that

turned into an order of removal

• Removal orders in absentia

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Removal Orders at the Conclusion of

Removal Proceedings

• If a person seeks relief from removal and

ultimately is denied by the IJ, the IJ will issue

a removal order.

• Some people are ordered removed having

never presented any claim for relief, e.g.:

– Pro se and could not navigate process

– Ineffective assistance of counsel

– No relief

Seeking Review of an

IJ Removal Order

• Can appeal IJ order to BIA

– 30 day deadline. 8 C.F.R. § 1003.38

• Can appeal BIA decision to circuit court

through Petition for Review

– 30 day deadline. 8 U.S.C. § 1252(b).

• When does removal order become “final”?

Reopening an IJ Removal OrderGenerally, a motion to reopen must be filed within 90 days of the final removal order. INA § 240(c)(7)(C)(i); 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1).

• Motion to reopen due to changed country conditions are not subject to the time/number limits. Matter of J-G-, 26 I. & N. Dec. 161 (BIA 2013)

• Motion to reopen due to ineffective assistance of counsel during the hearings subject to equitable tolling. Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988)

• Sua Sponte IJ Authority or request for Joint Motion to Reopen to the ICE Office of Chief Counsel. Matter of J-J, 21 I. & N. Dec. 976 (BIA 1997)

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Failure To Depart During

Voluntary Departure Period• If voluntary departure granted at the conclusion of removal

proceedings and the person fails to depart within the required period,

the order converts to a removal order and subject to INA § 240B(d)

consequences (monetary penalties and ten year bar to various forms

of relief, including adjustment of status).

• Extension of time to depart is the decision of and is subject to ICE

ERO discretion. 8 C.F.R. § 1240.26(f).

• If a person files a motion to reopen or reconsider during the voluntary

departure period, the filing automatically terminates the grant of

voluntary departure and the alternate order of removal takes effect. 8

C.F.R. § 1240.26(c)(3)(iii).

– But person is not subject to INA § 240B(d) consequences

In Absentia Removal Orders• IJ may issue if respondent fails to appear at

removal hearing and DHS establishes by clear and convincing evidence that written notice was provided and that the respondent is removable as charged. – DHS uses I-213, Record of Deportable Alien, to

meet burden

• Limited circumstances for reopening. INA §240(b)(5)(C); 8 CFR § 1003.23(b)(4)(ii)-(iii):– No Notice No filing deadline– Exceptional Circumstances 180 day deadline– Automatic stay of removal applies to both bases.

Hypothetical # 4In 2010, Juan’s attorney told him his case for asylum was too difficult and that he was better off telling the IJ that he was not scared of returning to Venezuela and that he wants a Voluntary Departure order. For that, the attorney would only charge $3,000. Juan never left and recently consulted again with an attorney, you, given the worsening situation in Venezuela and disappearance of his brother who was a businessman and affiliated with the opposition. What do you advise Juan?

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How To Know If the

Person Has a

Removal Order?

Ask Questions

Develop intake/screening questions. This will help determine whether there might be a removal order, and what further investigation is needed. Examples:

• Details regarding every entry and attempted entry and every departure, and outcome

• Was the person apprehended at or near the border?

• Did the person appear before an IJ?

• What documents does the person have from the encounter?

Expedited Order v. IJ Order

• If the person was

apprehended at or near

the border and was

removed without seeing

an IJ, may have

received an expedited

order of removal or

voluntary return

– File CBP FOIA

• If the person was

apprehended inside the

United States and saw

the IJ, whether in person

or via VTC, likely has

an order by an IJ

– Call 1-800-898-7180 and

file EOIR FOIA

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Request More Information

• If there was a proceeding before an IJ:– Call EOIR Hotline: 1-800-898-7180 (need A number)

– File EOIR FOIA Request

– File DHS FOIA request for A-file

• If there was a border encounter:– File CBP FOIA Request

– File OBIM (US VISIT) FOIA Request

• FBI checks are also a good idea

• BUT be careful listing certain information on FOIA

ICE Forms• Form I-860 “Notice and Order of Expedited Removal” or Form

M-444 “Information About Credible Fear Interview,” says you

are in Expedited Removal.

• Form I-871 “Notice of Intent/Decision to Reinstate Prior Order,”

says you are in Reinstatement of Removal (you entered the

United States illegally after having been deported)

• Form 1-851 “Notice of Intent to Issue a Final Administrative

Deportation Order,” then you are in Administrative Removal

proceedings because DHS says you were convicted of an

aggravated felony and you are not a Lawful Permanent Resident

• Form I-862 “Notice to Appear,” says you are in removal

proceedings

How Do These Removal Orders Impact Eligibility for Benefits and Exposure to Immediate Arrest & Removal?

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How Do Prior Orders Impact

Eligibility For Immigration Benefits?• Removal orders trigger various grounds of inadmissibility,

which can be a barrier to eligibility for immigration benefits

– Previously removed, INA § 212(a)(9)(A), unlawful presence accrual + departure, INA § 212(a)(9)(B), unlawful presence or prior removal order + departure + subsequent illegal entry or attempted entry, INA §212(a)(9)(C).

– Misrepresentation grounds. INA § 212(a)(6)(C).

– Failure to attend removal proceeding. INA § 212(a)(6)(B).

– No bond eligibility.

• A case-by-case analysis is required, as different immigration benefits have different inadmissibility waivers available.

Common Postures• Laura is married to a U.S. citizen but has an expedited order

and then returned to the United States. She is scared to return to Honduras.

• Jean has a 20 year old U.S. citizen daughter. He entered with a tourist visa in 1994 but the IJ denied his asylum claim and he appealed to the BIA.

• Jill did not show up to her removal hearing in 2009 because she was 12 years old and her uncle never told her about court.

• Luis checks in every 6 months to ICE under an Order of Supervision (OSUP). He has a special needs USC son as the basis for a stay. Luis was ordered removed in 2007 after a workplace raid. He did not have an attorney.

• Gigi has DACA. She also has a removal order from 2004.

Risk of Detention and Removal

• Regardless of the type of removal order and

regardless of whether the removal order was

actually executed, people who have a prior

removal order are at risk of arrest, detention,

and removal without a hearing.

• A person’s level of risk will depend on various

factors, including current agency priorities,

criminal record, and detention bed space

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If Arrested or Disappeared 1. Confirm where your client is detained through ICE’s detainee locator:

https://locator.ice.gov/odls/homePage.do

2. Call ICE ERO Office with jurisdiction over detention center to ask who is the ICE ERO Deportation Officer assigned to your client

3. Attach a G-28 (that need not be signed by the detainee though best to have these ready for all clients with prior removal orders) to email to ICE ERO Deportation Officer assigned to client’s case:– If subject to exp. order of removal, determine if the detainee is scheduled

for a credible or reasonable fear interview

– If has in absentia removal order, inform of intent to file a stay and MTRR and ask what date is planned for removal

4. Since the communication may be ignored, communicate frequently until you get confirmation that your client will see an AO or that they will not remove client before filing of Motion to Rescind and Reopen In Absentia Removal Order.o Normally takes ICE at least 2 weeks to deport someone once arrested.

Risk of Criminal Prosecution for

Immigration Violations• New Executive Orders and DHS Memos indicate

intent to increase federal prosecutions for immigration violations, which already account for more than half of all federal prosecutions. Common provisions:

– Illegal re-entry after removal. 8 U.S.C. § 1326

– Failure to depart after removal order. 8 U.S.C. § 1253.

– Improper entry. 8 U.S.C. § 1325

– Visa/passport fraud. 18 U.S.C. §§ 1542, 1544, 1546.

– Smuggling/harboring. 8 U.S.C. § 1324.

WRAP-UP

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Concluding Thoughts

• Determining a person’s immigration history is important.– Affects eligibility for immigration relief

– Affects level of risk particularly in light of changing enforcement priorities

– Need to know history to be able to remedy issues

• Now is the time to gather information and develop a plan – FOIA/FBI/consult

– Ensuring access to competent counsel

Remedies In a Nutshell• Person with expedited removal order

– Credible fear interview asylum, withholding, CAT

– If negative finding, IJ will review

• Person with in absentia removal order

– Motion to rescind and reopen

• Person with unexecuted removal order

– Motion to reopen/reconsider

– Appeal process

• Person who reentered after previous removal

– Reasonable fear interview withholding and CAT

– If negative finding, IJ will review

– Administrative motion to reopen/reconsider reinstatement order

• Specific forms of relief may also provide for waiver/cancellation of

some types of orders (e.g., NACARA)

Resources • Guide to Assisting Asylum-Seekers with In Absentia

Removal Orders: https://cliniclegal.org/sites/default/files/resources/asylum/A-Guide-to-Assisting-Asylum-Seekers.pdf

• American Immigration Council Practice Advisories: https://www.americanimmigrationcouncil.org/practice-advisories

• National Immigration Project of the NLG Practice Advisories: https://nationalimmigrationproject.org/practice.html

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Resources

• Unauthorized Practice of Immigration Law

(UPIL): A State-by-State Overview of Legal

Mechanisms: https://cliniclegal.org/upil

• FOIA Information:

https://www.uscis.gov/about-us/freedom-

information-and-privacy-act-foia/how-file-

foia-privacy-act-request/submitting-foia-

requests

Upcoming Trainings• Anatomy of a Removal Proceeding: March 27, 2-

3:30PM, for FREE

• CLINIC Convening: May 24-26 in Atlanta, GA

• How to Master the Courtroom: Developing Effective Trial Skills and Persuasive Oral Advocacy, May 24th in Atlanta for $100.

• E-Learning Series on Removal Proceedings: Thursdays, June 8-July 27th

• NITA/CLINIC Immigration Advocacy Training: July 16-18 in Boulder, CO for FREE