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Removal proceedings are administrative proceedings to determine an alien's removability from the United States and his or her eligibility for relief under the Immigration and Nationality Act (INA).[1] Procedural defenses such as collateral estoppel (or res judicata) and double jeopardy do not apply to the current removal proceedings,[2][3][4] and the burden of proof required in these proceedings differ between lawful permanent residents of the United States and foreign nationals (i.e., the 75 million aliens who visit the United States each year,[5][6] the 12 million or so illegal aliens,[7] and the 400,000 aliens possessing temporary protected status (TPS)).[1][8][9][10]

Removal proceedings are initiated by officers of the U.S. Department of Homeland Security (DHS) and adjudicated by immigration judges in immigration courts.[11][12] Their decisions may be appealed to the Board of Immigration Appeals (BIA) and thereafter reviewed by judges in federal courts,[13][14] who are empowered by statute to grant injunctive relief in particular cases.[3] There is no statute of limitations in removal proceedings. Particular cases can be reopened at any time and from anywhere in the world.[14][15][16][2][4] Nationals of the United States are statutorily and manifestly immune from removal proceedings.[13][9][10][17][18][19][20][21][22]

HistoryEdit

Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), "exclusion proceedings" were used to determine whether or not an alien was admissible to the United States under the INA, and "deportation proceedings" were used to determine if an alien was deportable.[23] When IIRIRA took effect in 1997, those proceedings were replaced by the current removal proceedings.[24][25]

It is important to note that every year around 75 million aliens are admitted to the United States as non-immigrant foreign nationals.[5][6][26] Most are admitted for tourism and leave the country before their visas are expired but some decide to stay in violation of the INA.[27] Such violators are classified as illegal aliens.[7] They must be arrested and placed in removal proceedings, without exception if they are wealthy, notable, or family members of United States citizens.[28]

Lawful permanent residents (legal immigrants) could either be aliens or "nationals but not citizens of the United States," which requires a case-by-case analysis and depends mainly on the number of continuous years they have spent in the United States before getting convicted of an offense that triggers removability.[1][8][9][10] They must never be treated as foreign nationals.[24]

ProcedureEdit

The process by which aliens are removed from the United States is a civil procedure,[29] which is simply to determine if whether or not an alien is removable under the INA, or whether the alien "is actually a national of the United States."[10][23] In other words, it is not a criminal procedure to punish anyone who happens to be an alien.[17][18][19][20][9] "The Supreme Court has long recognized that deportable aliens are entitled to constitutional protections of due process."[30] In February 1995, U.S. President Bill Clinton issued a directive in which he expressly stated the following:

Our efforts to combat illegal immigration must not violate the privacy and civil rights of legal immigrants and U.S. citizens. Therefore, I direct the Attorney General, the Secretary of Health and Human Services, the Chair of the Equal Employment Opportunity Commission, and other relevant Administration officials to vigorously protect our citizens and legal immigrants from immigration-related instances of discrimination and harassment. All illegal immigration enforcement measures shall be taken with due regard for the basic human rights of individuals and in accordance with our obligations under applicable international agreements. (emphasis added).[31][32]

People in removal proceedings are called "respondents" but then "petitioners" as their cases go to federal courts.[2][14][4] Their cases are originally decided by special inquiry officers (immigration judges), who are employed by the U.S. Department of Justice and appointed by the U.S. Attorney General.[12] The cases are prosecuted by local lawyers (attorneys) who are employed by local DHS field offices, or more specifically by the U.S. Immigration and Customs Enforcement (ICE).[33]

Notice to appearEdit

Removal proceedings begin when an authorized ICE or DHS officer issues an administrative summons called a "Notice to Appear" (NTA).[33][34][11] These officers are authorized by regulation to cancel the NTA for a number of reasons but only before the NTA is filed with an immigration court.[35] The DHS serves the NTA upon the respondent who is removable by reason of: entering the United States without inspection; being present in the country unlawfully or remaining beyond the terms permitted by his or her visa; committing certain crimes that makes the respondent inadmissible or deportable.[23]

Among other things, the NTA contains a list of factual allegations against the respondent. For example, a typical NTA might state:

  1. You are not a citizen or national of the United States
  2. You are a citizen and national of [another country]
  3. You were admitted to the United States on [date] as a tourist/visitor for a period not to exceed 180 days.
  4. You remained in the United States beyond your term of admission.

These factual allegations may also state whether the respondent previously filed any application with the United States Citizenship and Immigration Services (USCIS) and its disposition, and/or if the respondent presently holds or previously held a lawful status. The NTA also contains a charge of removability/inadmissibility, which is often a reference to which section of the INA the DHS is using against the respondent.[36] The NTA must contain a court date for the respondent to appear and answer the charges contained therein.[37] But in the event no court date is listed, the respondent must be notified of the court date by mail or in person at a future date.[38]

The respondent's failure to appear for the scheduled removal hearing will result in an in absentia order of removal being entered against him or her by an immigration judge,[39] which can be rescinded only upon showing "exceptional circumstances" or other recognized excusable reasons.[16][40]

Master hearingEdit

On the date of the removal hearing, also known as a master hearing or Master Calendar Hearing (sometimes abbreviated as MCH), before the immigration judge, the respondent may be represented by any attorney of his or her choosing. However, an attorney will not be provided by the court.[41]

The respondent will be expected to answer the charges against him or her by pleading to the factual allegations and charge(s) of removability contained in the NTA. Thereafter, if the respondent is eligible to apply for relief from removal such as waiver under former INA § 212(c), cancellation of removal, waiver of inadmissibility, withholding of removal under asylum or the Convention Against Torture (CAT), voluntary departure, etc., the respondent may request such relief and file any applications required for the relief.

If the respondent is not eligible for any form of relief or if the respondent refuses to request relief from removal, the immigration judge generally orders the respondent removed from the United States.[33] But if "the [DHS] fails to sustain the charges of removability against a respondent," the "immigration judge[] may dismiss or terminate removal proceedings" right away.[42]

If a respondent has filed an application for relief or has expressed to the immigration judge that he or she will be seeking a specific form of relief for which the respondent is not precluded by law, the immigration judge will set a merits hearing date. The merits hearing may be a matter of days or perhaps even more than a year later, depending on the type of relief requested and the immigration court's docket. However, if the only form of relief from removal available or requested is voluntary departure, the immigration judge will most often grant or deny the respondent's request for voluntary departure on the same date of the request.[33]

Merits hearingEdit

At the merits hearing, also known as the "individual hearing," the respondent will be able to present his or her documentary evidence (which is typically required to be submitted to the immigration court prior to the date of the merits hearing) for the court's consideration. The respondent may also testify in support of his or her application for relief, and may call witnesses. The DHS also questions the respondent and witnesses, and the DHS may also call its own witnesses in some cases. At the conclusion of the merits hearing, the immigration judge issues a decision. This decision might be oral and given on the same day as the merits hearing, or written and served by mail on all parties at a later date.[33]

Order of deportationEdit

If a respondent's application for relief is denied by the immigration judge, the respondent may appeal that decision to the BIA within 30 days (absent exceptional circumstances). If appealed, the respondent's removal proceedings continue at the appellate level at the BIA. If no appeal is filed and the immigration judge enters an "order of deportation"[43] then that order becomes final 30 days after it has been entered. In this regard, the INA states the following:

(A) The term "order of deportation" means the order of the [immigration officer or immigration judge], concluding that the alien is deportable or ordering deportation. (B) The order described under subparagraph (A) shall become final upon the earlier of—(i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals. (emphasis added).[43]

The phrase "concluding that the alien is deportable or ordering deportation" in 8 U.S.C. § 1101(a)(47)(A) refers to the final action of the immigration judge.[11][23] If the immigration judge states that a specific alien must not be removed (deported) from the United States and grants him or her relief, then no "order of deportation" was entered.[11] Several U.S. Circuit Courts of Appeal have nonetheless ruled that in such situations, the immigration judge has entered an "order of deportation" against the alien who the immigration judge had decided to keep in the United States.[44] For INA relief purposes, the immigration judge is (in fact) the Attorney General.[12][45]

8 C.F.R. § 1003.1(d)(3) makes clear that the BIA may, inter alia, vacate an immigration judge's decision for being clearly erroneous, but it is not authorized to enter an "order of deportation" in the first instance.[46] A panel of the BIA has recently addressed this issue by stating the following:

We cannot meaningfully address the respondent's arguments in this regard absent sufficient legal analysis by the Immigration Judge or adequate factual findings, which we are without authority to make in the first instance. See Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002) (remanding to the Immigration Judge because of insufficient factual findings and legal analysis); 8 C.F.R. 1003.1(d)(3)(iv) (2014) (limiting the Board's fact-finding authority and providing that the Board may remand the proceeding to the Immigration Judge if further fact-finding is needed); see also Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984) (noting that the Board is "an appellate body whose function is to review, not to create, a record").[1]

In the case of a person who was actually deported from the United States pursuant to such an order by the BIA, the deportation may be void ab initio (i.e., a legal nullity).[47][48][14] Such action constitutes a violation of the Constitution and the CAT.[17][18][19][20] It violates both the Due Process Clause and the Equal Protection Clause,[30][49] which may be redressed in courts at any time.[3][13][15][4]

Types of aliens who appear in removal proceedingsEdit

 
Sample of a permanent resident card (green card), which lawfully permits its holder to live in the United States similar to that of all other Americans.[1]

"Only aliens are subject to removal."[50] There are three categories of aliens who appear in removal proceedings:[51]

  1. Aliens who were detained while entering the United States;
  2. Aliens who were admitted to the United States by the government but are deportable; and
  3. Aliens present in the United States who have never been admitted or paroled by the government.

Burden of proof involving a permanent residentEdit

A lawful permanent resident (LPR) is a person "having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed."[52] An LPR can either be an "alien" or a "national of the United States" (American), which requires a case-by-case analysis and depends mainly on the number of continuous years he or she has spent in the United States.[53] "In removal proceedings involving an LPR, the [DHS] bears the burden of proof, which it must meet by adducing clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true."[8][9] This is to uphold the U.S. Constitution, deter civil disorder, and protect the United States against major lawsuits.[21][22][54]

Burden of proof involving a nonpermanent residentEdit

In removal proceedings involving a non-LPR, the burden of proof is on the alien to show that he or she "is clearly and beyond doubt entitled to be admitted and is not inadmissible under" the INA.[55] Specifically:

  1. Arriving Aliens: As a general rule, the arriving non-LPR alien bears the legal burden of proof of clear admissibility to the United States.[51][55]
  2. Aliens Present Without Admission or Parole: This refers to illegal aliens.[7] In this case, once the prosecution establishes that the respondent is a non-LPR alien, the burden of proof is on the respondent to demonstrate that he or she is in lawful status in the United States.[51][55]
  3. Admitted Aliens: This refers to aliens who were admitted by the government. In other words, they lawfully entered the country as opposed to unlawfully. Here, the legal burden of proof of removability falls on the prosecution.[8][51]

Regardless of the category, if the alien is requesting any form of relief from removal, e.g., cancellation of removal, waiver of inadmissibility, and/or protection under the CAT, the burden of proof for demonstrating eligibility for the relief squarely falls on the alien.[55]

Lawyers for aliens in removal proceedingsEdit

Aliens in removal proceedings are allowed to litigate their cases pro se, without the help of any lawyer (attorney). Most immigration courts have set up programs where pro bono (free, volunteer) attorneys are available on the day of the master calendar hearing. For criminal proceedings, the law provides a public defender for every defendant who has no means to hire a private attorney. But since removal proceedings are not criminal proceedings, the law does not provide a public defender or compensate the respondent for the costs of an attorney. The pro bono attorney helps the alien in the following ways:

  • The pro bono attorney speaks on behalf of the respondent in court.
  • The pro bono attorney helps the respondent determine how to respond to each of the charges in the NTA.
  • The pro bono attorney helps the respondent determine whether to claim eligibility for relief from removal (such as asylum or cancellation of removal)

If the respondent's situation is complicated, the pro bono attorney may request a continuance on the respondent's behalf, so that the respondent can secure an attorney. The pro bono attorney does not typically continue to represent the respondent for the merits hearing. Rather, the respondent is expected to find (and pay for) an attorney by that time.

How appeals workEdit

Decisions of immigration judges may be appealed by either party with the BIA. Absent exceptional circumstances, the BIA does not accept new evidence regarding the original case, but instead, simply aims to determine whether the immigration judge made an incorrect judgment based on the law or the facts available to it at that time. It is therefore critical that all the arguments and facts be presented to the immigration judges in immigration courts. BIA appeals are generally handled through paper, with physical hearings very rare.[56]

Beyond the BIA, decisions may be appealed and reviewed by judges in federal courts.[13][3][15][14][4] These courts are strictly commanded by 8 U.S.C. § 1252(f)(2) not to help any alien in removal proceedings unless "the alien shows by clear and convincing evidence that" his or her deportation from the United States is illegal "as a matter of law." Despite this clear command by the U.S. Congress, no court has ever applied the standard of review promulgated by § 1252(f)(2). Instead, the courts created their own standard of review, called the "abuse of discretion" standard. Under this court-created standard, a BIA decision will be remanded for further proceedings if it is arbitrary, irrational, or contrary to the law. But this allows criminal aliens to remain in the United States while the BIA and the courts play ping-pong with their cases. In the meantime, the courts are blatantly refusing to review any late-filed petition, even if the petitioner is a national of the United States like U.S. President Donald Trump. This is a clear-cut violation of the U.S. Constitution and the CAT.[17][18][19][20][9][31] Such law or rule has never existed in the history of the United States. The petitioner in Ahmadi v. Att'y Gen., 659 F. App'x 72 (3d Cir. 2016), appears to be the first person to point out this potential major error of the appeals courts. That case involves an uncontested application for naturalization and money damages.[14]

Removal without proceedingsEdit

The following are ways certain aliens may be removed without removal proceedings:[57]

  • Expedited removal: Here, an order of removal is issued by the U.S. Customs and Border Protection and the "illegal alien" is removed without any opportunity for a hearing before an immigration judge.[7]
  • Reinstatement of removal: Here, an alien is removed by reinstating a previous order of removal that had been executed (after which the alien re-entered the country unlawfully).
  • Stipulated removal: Here, the alien forgoes the right to a hearing before an immigration judge and agrees to be removed immediately. Aliens may do this to avoid lengthy periods of detention or legal limbo, and to reunite with their families.
  • Administrative removal for an aggravated felon: Any "illegal alien" who has been convicted of any aggravated felony may be removed immediately after the completion of his or her term of imprisonment.[7]

Removal proceedings also should not be confused with Operation Streamline, that involves the use of federal criminal charges being pressed against aliens for unlawful entry. Non-LPR aliens who are found guilty through Operation Streamline courts generally have to spend a few months in prison, after which they are handed over to ICE agents. Generally, those found guilty under Operation Streamline are removed through expedited removal, but some of them may go through normal removal proceedings.

Alternatives to removalEdit

Some alternatives to removal that may be granted in some circumstances include:

See alsoEdit

ReferencesEdit

  1. ^ a b c d e See generally Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015) ("An alien who adjusted status in the United States, and who has not entered as a lawful permanent resident, is not barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), as a result of an aggravated felony conviction.") (collecting court cases); accord 8 U.S.C. § 1157(c)(3) ("Admission by Attorney General of refugees"); 8 U.S.C. § 1159(c) ("Coordination with section 1182"); 8 U.S.C. § 1101(a)(13)(C) ("An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien— ... has committed an offense identified in section 1182(a)(2) of this title, unless since such offense the alien has been granted relief under section 1182(h) or 1229b(a) . ... ") (emphasis added); see also Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000) (en banc) ("Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (Supp. II 1996), an offense must be one 'referred to in section 212(a)(2)' of the Act, 8 U.S.C. § 1182(a)(2) (1994 & Supp. II 1996), to terminate the period of continuous residence or continuous physical presence required for cancellation of removal."); cf. 8 U.S.C. § 1182(h) ("No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.") (emphasis added).
  2. ^ a b c Duvall v. Att'y Gen., 436 F.3d 382, 387 (3d Cir. 2006) ("A cursory review of the INA shows that the doctrine is not explicitly prescribed. Nowhere does the Act use the phrase 'collateral estoppel,' 'res judicata,' 'issue preclusion,' or 'claim preclusion,' and nowhere does the Act expressly bar the agency from relitigating issues previously decided."); Matter of Jasso Arangure, 27 I&N Dec. 178 (BIA 2017); see also Matter of Beckford, 22 I&N Dec. 1216 (BIA 2000) (en banc) ("Where an alien has filed an untimely motion to reopen alleging that the Immigration and Naturalization Service failed to prove the alien's removability, the burden of proof no longer lies with the Service to establish removability, but shifts to the alien to demonstrate that an exceptional situation exists that warrants reopening by the Board of Immigration Appeals on its own motion."); Matter of G-N-C-, 22 I&N Dec. 281, 285 (BIA 1998) (en banc) ("Finally, we note that an alien may collaterally attack a final order of exclusion or deportation in a subsequent proceeding only upon a showing that the prior order resulted in a gross miscarriage of justice."); Matter of JJ-, 21 I&N Dec. 976 (BIA 1997) (en banc); In re Wagner Aneudis Martinez, A043 447 800 (BIA Jan. 12, 2016) (same; unpublished three-member panel decision); In re Vikramjeet Sidhu, A044 238 062 (BIA Nov. 30, 2011) (same; unpublished three-member panel decision).
  3. ^ a b c d 8 U.S.C. § 1326(d) ("Limitation on collateral attack on underlying deportation order"); 8 U.S.C. § 1252(f) ("Limit on injunctive relief"); Correctional Services Corp. v. Malesko, 534 U.S. 61, 74 (2001) (stating that "injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally."); Wheaton College v. Burwell, 134 S.Ct. 2806, 2810-11 (2014) ("Under our precedents, an injunction is appropriate only if (1) it is necessary or appropriate in aid of our jurisdiction, and (2) the legal rights at issue are indisputably clear.") (internal quotation marks and brackets omitted); Lux v. Rodrigues, 561 U.S. 1306, 1308 (2010); Alli v. Decker, 650 F.3d 1007, 1010-11 (3d Cir. 2011) (same); Nken v. Holder, 556 U.S. 418, 443 (2009) ("We should not lightly conclude that Congress enacted a provision that serves no function, and the Court's hyper-technical distinction between an injunction and a stay does not provide a sufficient justification for adopting an interpretation that renders § 1252(f)(2) meaningless. That result is particularly anomalous in the context of § 1252(f)(2), which Congress said should apply '[n]otwithstanding any other provision of law.'"); NLRB v. SW General, Inc., 580 U.S. ___, ___, 137 S.Ct. 929, 939 (2017) ("In statutes, the [notwithstanding any other provision of law] 'shows which provision prevails in the event of a clash.'").
  4. ^ a b c d e United States v. Bueno-Sierra, No. 17-12418, p.6-7 (6th Cir. Jan. 29, 2018) ("Rule 60(b)(1) through (5) permits a district court to set aside an otherwise final judgment on a number of specific grounds, such as mistake, newly discovered evidence, an opposing party's fraud, or a void or satisfied judgment. Rule 60(b)(6), the catch-all provision, authorizes a judgment to be set aside for 'any other reason that justifies relief.' Rule 60(d)(3) provides that Rule 60 does not limit a district court's power to 'set aside a judgment for fraud on the court.'") (citations omitted) (unpublished); Herring v. United States, 424 F.3d 384, 386-87 (3d Cir. 2005) ("In order to meet the necessarily demanding standard for proof of fraud upon the court we conclude that there must be: (1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) in fact deceives the court."); 18 U.S.C. § 371 (court employees (including judges and clerks) have no immunity from prosecution under this section of law); 18 U.S.C. § 1001 (same); Luna v. Bell, 887 F.3d 290, 294 (6th Cir. 2018) ("Under Rule 60(b)(2), a party may request relief because of 'newly discovered evidence.'"); United States v. Handy, ___ F.3d ___, ___, No. 18-3086, p.5-6 (10th Cir. July 18, 2018) ("Rule 60(b)(4) provides relief from void judgments, which are legal nullities. ... [W]hen Rule 60(b)(4) is applicable, relief is not a discretionary matter; it is mandatory. And the rule is not subject to any time limitation.") (citations, brackets, and internal quotation marks omitted); Mattis v. Vaughn, No. 99-6533, p.3-4 (E.D. Pa. June 4, 2018); accord Satterfield v. Dist. Att'y of Phila., 872 F.3d 152, 164 (3d Cir. 2017) ("The fact that ... proceeding ended a decade ago should not preclude him from obtaining relief under Rule 60(b) if the court concludes that he has raised a colorable claim that he meets this threshold actual-innocence standard . ... "); see also United States v. Olano, 507 U.S. 725, 736 (1993) ("In our collateral review jurisprudence, the term 'miscarriage of justice' means that the defendant is actually innocent. ... The court of appeals should no doubt correct a plain forfeited error that causes the conviction or sentencing of an actually innocent defendant. ... ") (citations omitted); Davis v. United States, 417 U.S. 333, 346-47 (1974) (regarding "miscarriage of justice" and "exceptional circumstances"); Gonzalez-Cantu v. Sessions, 866 F.3d 302, 306 (5th Cir. 2017) (same); Pacheco-Miranda v. Sessions, No. 14-70296 (9th Cir. Aug. 11, 2017) (same).
  5. ^ a b "Number of inbound international visitors to the United States from 2000 to 2022 (in millions)". Statista. Retrieved 2018-10-06.
  6. ^ a b "Destination USA: 75 million international guests visited in 2014". share.america.gov. Retrieved 2018-09-19.
  7. ^ a b c d e 8 U.S.C. § 1365(b) ("An illegal alien ... is any alien ... who is in the United States unlawfully. ... ").
  8. ^ a b c d Edwards v. Sessions, No. 17-87, p.3 (2d Cir. Aug. 24, 2018) (internal quotation marks omitted) (summary order); accord 8 C.F.R. 1240.46(a); 8 U.S.C. § 1229a(b)(5)(A); Matter of Pichardo, 21 I&N Dec. 330, 333 (BIA 1996) (en banc) ("In fact, this conviction may support a finding of deportability ... but only if the record contains clear, unequivocal, and convincing proof . ... "); Mondaca-Vega v. Lynch, 808 F.3d 413, 429 (9th Cir. 2015) ("The burden of proof required for clear, unequivocal, and convincing evidence is greater than the burden of proof required for clear and convincing evidence."), cert. denied, 137 S.Ct. 36 (2016); Ward v. Holder, 733 F.3d 601, 604–05 (6th Cir. 2013); United States v. Thompson-Riviere, 561 F.3d 345, 349 (4th Cir. 2009) ("To convict him of this offense, the government bore the burden of proving beyond a reasonable doubt that (inter alia) he is an 'alien,' which means he is 'not a citizen or national of the United States,'" (citations omitted) (emphasis added); Francis v. Gonzales, 442 F.3d 131, 138 (2d Cir. 2006); Berenyi v. Immigration Dir., 385 U.S. 630, 636-37 (1967) ("When the Government seeks to strip a person of [United States nationality] already acquired, or deport a resident alien and send him from our shores, it carries the heavy burden of proving its case by 'clear, unequivocal, and convincing evidence.' ... [T]hat status, once granted, cannot lightly be taken away. ... " (footnotes omitted)); Woodby v. INS, 385 U.S. 276, 285 (1966); Chaunt v. United States, 364 U.S. 350, 353 (1960).
  9. ^ a b c d e f Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) ("Deprivation of [nationality]—particularly American [nationality], which is one of the most valuable rights in the world today—has grave practical consequences.") (citation and internal quotation marks omitted); see also Arizona v. United States, 567 U.S. 387, 395 (2012) ("Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.").
  10. ^ a b c d Ricketts v. Attorney General of the U.S., ___ F.3d ___, ___, No. 16-3182, p.2 (3d Cir. July 30, 2018); Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 15 (D.C. Cir. 2015) ("The sole such statutory provision that presently confers United States nationality upon non-citizens is 8 U.S.C. § 1408."); Matter of Navas-Acosta, 23 I&N Dec. 586, 587 (BIA 2003) ("If Congress had intended nationality to attach at some point before the naturalization process is complete, we believe it would have said so."); 8 U.S.C. § 1436 ("A person not a citizen who owes permanent allegiance to the United States, and who is otherwise qualified, may, if he becomes a resident of any State, be naturalized upon compliance with the applicable requirements of this subchapter. ... "); 8 U.S.C. § 1101(a)(23) ("The term 'naturalization' means the conferring of [United States nationality] upon a person after birth, by any means whatsoever.") (emphasis added); TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) ("It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.") (internal quotation marks omitted); see also Saliba v. Att'y Gen., 828 F.3d 182, 189 (3d Cir. 2016) ("Significantly, an applicant for naturalization has the burden of proving 'by a preponderance of the evidence that he or she meets all of the requirements for naturalization.'").
  11. ^ a b c d 8 U.S.C. § 1229 ("Initiation of removal proceedings"); see also 8 U.S.C. § 1229a(c)(1)(A) ("'At the conclusion of the proceeding the immigration judge shall decide whether an alien is removable from the United States. The determination of the immigration judge shall be based only on the evidence produced at the hearing.") (emphasis added).
  12. ^ a b c 8 C.F.R. 1003.14; Galindo v. Sessions, ___ F.3d ___, ___, No. 17-1253, p.4-5 (7th Cir. July 31, 2018); see also "Attorney General Sessions Delivers Remarks to the Largest Class of Immigration Judges in History for the Executive Office for Immigration Review (EOIR)". U.S. Dept. of Justice. September 10, 2018. Retrieved 2018-09-18.
  13. ^ a b c d INA sec. 242, 8 U.S.C. § 1252 ("Judicial review of orders of removal"); Reyes Mata v. Lynch, 576 U.S. ___, ___, 135 S.Ct. 2150, 1253 (2015); Khalid v. Sessions, ___ F.3d ___, ___, No. 16‐3480, p.6 (2d Cir. Sept. 13, 2018) (case involving a U.S. citizen in removal proceedings); Jaen v. Sessions, 899 F.3d 182 (2d Cir. 2018) (same); Anderson v. Holder, 673 F.3d 1089, 1092 (9th Cir. 2012) (same); see also Gonzalez-Alarcon v. Macias, 884 F.3d 1266, 1270 (10th Cir. 2018); Alimbaev v. Att'y, 872 F.3d 188, 194 (3d. Cir. 2017) (explaining that "even when presented with these discretionary decisions, we may review colorable claims or questions of law, such as whether the BIA misapplied the legal standard. ... And, of course, when our jurisdiction is unclear, we have jurisdiction to determine whether we have jurisdiction.") (citations, internal quotation marks and brackets omitted); Bonilla v. Lynch, 840 F.3d 575, 581-82 (9th Cir. 2016) ("But we have not specifically addressed whether we have jurisdiction to review the Board's denial of a motion to reopen sua sponte for the limited purpose of determining whether the Board based its decision on legal or constitutional error. Several circuits have held that courts of appeal do have such limited jurisdiction ... we agree with those decisions.") (citations omitted).
  14. ^ a b c d e f Ahmadi v. Ashcroft, et al., No. 03-249 (E.D. Pa. Feb. 19, 2003) ("Petitioner in this habeas corpus proceeding, entered the United States on September 30, 1982 as a refugee from his native Afghanistan. Two years later, the Immigration and Naturalization Service (the 'INS') adjusted Petitioner's status to that of a lawful permanent resident. ... The INS timely appealed the Immigration Judge's decision to the Board of Immigration Appeals (the 'BIA').") (Baylson, District Judge); Ahmadi v. Att'y Gen., 659 F. App'x 72 (3d Cir. 2016) (Slip Opinion, pp.2, 4 n.1) (invoking statutorily nullified case law, the court dismissed an obvious illegal deportation case by asserting that it lacks jurisdiction to decide an unopposed United States nationality claim under 8 U.S.C. § 1252(b)(5) solely due to 8 U.S.C. § 1252(b)(1)) (non-precedential); Ahmadi v. Sessions, No. 16-73974 (9th Cir. Apr. 25, 2017) (same; unpublished single-paragraph order); Ahmadi v. Sessions, No. 17-2672 (2d Cir. Feb. 22, 2018) (same; unpublished single-paragraph order); cf. United States v. Wong, 575 U.S. ___, ___, 135 S.Ct. 1625, 1632 (2015) ("In recent years, we have repeatedly held that procedural rules, including time bars, cabin a court's power only if Congress has clearly stated as much. Absent such a clear statement, ... courts should treat the restriction as nonjurisdictional. ... And in applying that clear statement rule, we have made plain that most time bars are nonjurisdictional.") (citations, internal quotation marks, and brackets omitted) (emphasis added); see also Bibiano v. Lynch, 834 F.3d 966, 971 (9th Cir. 2016) ("Section 1252(b)(2) is a non-jurisdictional venue statute") (collecting cases) (emphasis added); Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir. 2001) (en banc) (the court clarified "that § 1252(f)(2)'s standard for granting injunctive relief in removal proceedings trumps any contrary provision elsewhere in the law.").
  15. ^ a b c Blandino-Medina v. Holder, 712 F.3d 1338, 1342 (9th Cir. 2013) ("An individual who has already been removed can satisfy the case-or-controversy requirement by raising a direct challenge to the removal order."); United States v. Charleswell, 456 F.3d 347, 351 (3d Cir. 2006) (same); Kamagate v. Ashcroft, 385 F.3d 144, 150 (2d Cir. 2004) (same); see also Zegarra-Gomez v. INS, 314 F.3d 1124, 1127 (9th Cir. 2003) (holding that because petitioner's inability to return to the United States for twenty years as a result of his removal was "a concrete disadvantage imposed as a matter of law, the fact of his deportation did not render the pending habeas petition moot").
  16. ^ a b See generally 8 U.S.C. § 1229a(c)(7) ("Motions to reopen"); 8 C.F.R. 1003.2(c) ("Motion to reopen"); Matter of A-N- & R-M-N-, 22 I&N Dec. 953 (BIA 1999) (en banc) ("Aliens seeking to reopen exclusion proceedings to apply for asylum and withholding of deportation who have presented evidence establishing materially changed circumstances in their homeland or place of last habitual residence, such that they meet the general requirements for motions to reopen, need not demonstrate 'reasonable cause' for their failure to appear at the prior exclusion hearing.") (emphasis added); see also Toor v. Lynch, 789 F.3d 1055, 1064-65 (9th Cir. 2015) ("The regulatory departure bar [(8 C.F.R. 1003.2(d))] is invalid irrespective of the manner in which the movant departed the United States, as it conflicts with clear and unambiguous statutory text.") (collecting cases).
  17. ^ a b c d "Deprivation Of Rights Under Color Of Law". U.S. Department of Justice (DOJ). August 6, 2015. Retrieved 2018-09-18. Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under 'color of law' include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim. The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any. (emphasis added).
  18. ^ a b c d 18 U.S.C. §§ 241249; United States v. Lanier, 520 U.S. 259, 264 (1997) ("Section 242 is a Reconstruction Era civil rights statute making it criminal to act (1) 'willfully' and (2) under color of law (3) to deprive a person of rights protected by the Constitution or laws of the United States."); United States v. Maravilla, 907 F.2d 216 (1st Cir. 1990) (case about the kidnapping, robbing, and cold-blooded murder of a visiting alien by two U.S. immigration officers); United States v. Acosta, 470 F.3d 132, 136 (2d Cir. 2006) (holding that 18 U.S.C. §§ 241 and 242 both constitute "crimes of violence"); see also 42 U.S.C. §§ 19811985; Ziglar v. Abbasi, 582 U.S. ___ (2017); Lyttle v. United States, 867 F.Supp.2d 1256, 1270 (M.D. Ga. 2012) (case about a U.S.-born citizen deported from the United States by the ICE "as an 'alien who is convicted of an aggravated felony.'").
  19. ^ a b c d "Article 16". Office of the United Nations High Commissioner for Human Rights. Retrieved 2018-09-18. [The United States] shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. (emphasis added).
  20. ^ a b c d "Chapter 11 - Foreign Policy: Senate OKs Ratification of Torture Treaty" (46th ed.). CQ Press. 1990. pp. 806–7. Retrieved 2018-09-18. The three other reservations, also crafted with the help and approval of the Bush administration, did the following: Limited the definition of 'cruel, inhuman or degrading' treatment to cruel and unusual punishment as defined under the Fifth, Eighth and 14th Amendments to the Constitution. ... (emphasis added).
  21. ^ a b Stevens, Jacqueline (June 2, 2015). "No Apologies, But Feds Pay $350K to Deported American Citizen". LexisNexis. Retrieved 2018-10-08.
  22. ^ a b Yu Hsi Lee Ju, Esther (June 4, 2015). "What One Man Did When He Was Accidentally Deported To Mexico". ThinkProgress. Retrieved 2018-10-08.
  23. ^ a b c d 8 U.S.C. § 1229a(e)(2) ("The term 'removable' means—(A) in the case of an alien not admitted to the United States, that the alien is inadmissible under section 1182 of this title, or (B) in the case of an alien admitted to the United States, that the alien is deportable under section 1227 of this title."); see also Tima v. Attorney General of the U.S., ___ F.3d ___, ___, No. 16-4199, p.11 (3d Cir. Sept. 6, 2018) ("Section 1227 defines '[d]eportable aliens,' a synonym for removable aliens. ... So § 1227(a)(1) piggybacks on § 1182(a) by treating grounds of inadmissibility as grounds for removal as well.").
  24. ^ a b Nguyen v. Sessions, ___ F.3d ___, ___, No. 15-72747, p.7 (9th Cir. Aug. 23, 2018) ("Prior to enactment of [IIRIRA], these two kinds of action occurred in different procedural settings, but since then, the Government has used a unified procedure, known as a 'removal proceeding,' for exclusions and deportations alike.") (internal quotation marks omitted); Vartelas v. Holder, 566 U.S. 257, 262 (2012).
  25. ^ Othi v. Holder, 734 F.3d 259, 264-65 (4th Cir. 2013) ("In 1996, Congress 'made major changes to immigration law' via IIRIRA. ... These IIRIRA changes became effective on April 1, 1997.").
  26. ^ "International Visitation to the United States: A Statistical Summary of U.S. Visitation" (PDF). U.S. Department of Commerce. 2015. p. 2. Retrieved 2018-09-19.
  27. ^ Gomez, Alan (August 7, 2018). "Homeland Security: More than 600,000 foreigners overstayed U.S. visas in 2017". USA Today. Retrieved 2018-10-05.
  28. ^ 8 U.S.C. § 1227(a)(1) ("Inadmissible at time of entry or of adjustment of status or violates status") (emphasis added).
  29. ^ Markowitz, Peter L. (June 2011). "Deportation Is Different" (PDF). University of Pennsylvania. Retrieved September 18, 2018.
  30. ^ a b Lopez v. Heinauer, 332 F.3d 507, 512 (8th Cir. 2003); see also Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) ("Aliens, of course, are entitled to due process. They must be afforded the opportunity to be heard at a meaningful time and in a meaningful manner.") (citations and internal quotation marks omitted).
  31. ^ a b "60 FR 7885: ANTI-DISCRIMINATION" (PDF). U.S. Government Publishing Office. February 10, 1995. p. 7888. Retrieved July 16, 2018. See also Zuniga-Perez v. Sessions, ___ F.3d ___, ___, No. 17-996, p.11 (2d Cir. July 25, 2018) ("The Constitution protects both citizens and non‐citizens.") (emphasis added).
  32. ^ Alabama v. Bozeman, 533 U.S. 146, 153 (2001) ("The word 'shall' is ordinarily the language of command.") (internal quotation marks omitted).
  33. ^ a b c d e "FACT SHEET". U.S. Dept. of Justice (DOJ). December 2017. Retrieved 2018-10-18.
  34. ^ 8 C.F.R. 239.1.
  35. ^ 8 C.F.R. 239.2; see also Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998) (en banc).
  36. ^ 8 U.S.C. § 1229(a)
  37. ^ Pereira v. Sessions, 585 U.S. ___, 138 S. Ct. 2105 (2018) (Slip Opinion, pp.2, 7-8)
  38. ^ Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) (collecting circuit precedents).
  39. ^ 8 U.S.C. § 1229a(b)(5)
  40. ^ 8 U.S.C. § 1229a(e)(1) (defining the term "exceptional circumstances")
  41. ^ "27. Immigration Court Proceedings". Immigration Equality. Retrieved 2016-02-11.
  42. ^ Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018).
  43. ^ a b 8 U.S.C. § 1101(a)(47) (emphasis added); see also 8 C.F.R. 1001.1(l); 8 U.S.C. § 1225(b)(1)(A)(i) ("If an immigration officer determines that an alien ... is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States. ... ") (emphasis added).
  44. ^ Lolong v. Gonzales, 484 F.3d 1173, 1177 (9th Cir. 2007) (en banc); Guevara v. Gonzales, 472 F.3d 972, 976 (7th Cir. 2007); Sosa-Valenzuela v. Gonzales, 483 F.3d 1140, 1143-44 n.5 (10th Cir. 2007).
  45. ^ Kopan, Tal (September 10, 2018). "Sessions criticizes immigrants' attorneys before immigration judges". CNN. Retrieved 2018-09-18.
  46. ^ See generally 8 C.F.R. 1003.1 (titled "Organization, jurisdiction, and powers of the Board of Immigration Appeals").
  47. ^ Matter of Hernandez, 21 I&N Dec. 224, 226 (BIA 1996) (en banc) (stating that "the violation of a regulatory requirement invalidates a proceeding only where the regulation provides a benefit to the alien and the violation prejudiced the interest of the alien which was to be protected by the regulation.").
  48. ^ United States v. Aguilera-Rios, 769 F.3d 626, 628-29 (9th Cir. 2014) ("He contends that his prior removal order was invalid . ... We agree that he was not originally removable as charged. ... "); Singh v. USCIS, 878 F.3d 441, 443 (2d Cir. 2017) ("The government conceded that Singh's removal was improper. ... Consequently, in May 2007, Singh was temporarily paroled back into the United States by the Attorney General, who exercised his discretion to grant temporary parole to certain aliens."); Avalos-Palma v. United States, No. 13-5481 (FLW), 2014 WL 3524758, p.3 (D.N.J. July 16, 2014) ("On June 2, 2012, approximately 42 months after the improper deportation, ICE agents effectuated Avalos-Palma's return to the United States."); Matter of Diaz-Garcia, 25 I&N Dec. 794 (BIA 2012) ("The unlawful removal of an alien during the pendency of a direct appeal from a deportation or removal order in violation of 8 C.F.R. 1003.6(a) (2012) does not deprive the Board of Immigration Appeals of jurisdiction to review the appeal.").
  49. ^ Morales-Santana v. Lynch, 804 F.3d 520, 527 (2d Cir. 2015)
  50. ^ Matter of Navas-Acosta, 23 I&N Dec. 586 (BIA 2003); 8 U.S.C. § 1101(a)(3) ("The term 'alien' means any person not a citizen or national of the United States.") (emphasis added); see also 8 U.S.C. § 1101(a)(22) ("The term 'national of the United States' means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.") (emphasis added); Black's Law Dictionary at p.87 (9th ed., 2009) (defining the term "permanent allegiance" as "[t]he lasting allegiance owed to [the United States] by its citizens or [permanent resident]s.") (emphasis added); Ricketts v. Attorney General of the U.S., ___ F.3d ___, ___, No. 16-3182, p.5 note 3 (3d Cir. July 30, 2018) ("Citizenship and nationality are not synonymous."); Jennings v. Rodriguez, 138 S.Ct. 830, 855-56 (2018) (Justice Thomas concurring) ("The term 'or' is almost always disjunctive, that is, the [term]s it connects are to be given separate meanings.").
  51. ^ a b c d Weil, Jack H. "Burdens of Proof in Removal Proceedings" (PDF). Retrieved 2016-02-12.
  52. ^ 8 U.S.C. § 1101(a)(20)
  53. ^ "Lawful Permanent Residents (LPR)". U.S. Dept. of Homeland Security (DHS). April 24, 2018. Retrieved 2018-10-08.
  54. ^ Harvey v. Chertoff, 263 F. App'x. 188, 190 (3d Cir. 2008) ("Harvey sought money damages in the amount of $15 million."); see also Allen v. Holder, Civil Action No. 13-5736, p.3 (D.N.J. Aug. 16, 2016) ("He also seeks $5,000,000 in damages.")
  55. ^ a b c d 8 U.S.C. § 1229a(c)(2) ("Burden on alien"); Francis v. Gonzales, 442 F.3d 131, 138 (2d Cir. 2006) ("We have generally applied this test in claims for asylum, withholding of removal, or relief under the Convention Against Torture, where the alien bears the burden of proof.").
  56. ^ "28. Board of Immigration Appeals". Immigration Equality. Retrieved February 12, 2016.
  57. ^ "Removal Without Recourse: The Growth of Summary Deportations from the United States". Immigration Policy Center. April 28, 2014. Retrieved 2015-07-19.

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