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Immigration and Naturalization Service Institutional Removal Program

Report No. 02-41
September 2002
Office of the Inspector General

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APPENDIX II

CRIMINAL ALIENS: THE REMOVAL PROCESS

The removal process involves four phases: identification and processing, case preparation, administrative proceedings, and removal. Aliens convicted of committing an aggravated felony are subject to removal. Depending on the immigration status of the criminal alien, the type of removal proceedings may be one of the following: administrative, reinstatement of a prior removal order, or a hearing before an immigration judge.

Administrative Removal: Under section 238(b) of the Act, no relief from removal exists once a case meets the criteria for administrative removal proceedings. Upon initiation of the proceedings, the criteria include that the individual must be an alien who is not a lawful permanent resident (LPR) and the individual must have a final conviction for an aggravated felony. When processing the alien for this procedure, each of these elements as well as the alien's identity must be established.

1. Establish alienage. An alien is any person who is not a citizen or national of the United States. In determining if a person is an alien, the INS officer (i.e. Immigration & Special Agent) must consider place of birth, the nationality of the person's parents at birth, and/or subsequent naturalization by the person or his parents. Those items that would cause an individual to be an alien must be explored during questioning. If the facts indicate that the person is an alien, they must be documented in a Record of Deportable/Inadmissible Alien (Form I-213), sworn statement, and printouts of records checks. The time and date that the alien was questioned should be noted on the Form I-213, and this evidence must be placed in the record of proceeding (ROP).
2. Verifying immigration status (not a LPR). In order to establish the alien's immigration status at the time the process begins, the alien must be interviewed and all pertinent INS records systems should be checked. All evidence collected must be placed in the ROP. The Form I-213, sworn statement, printouts of records checks, i.e. CIS, DACS, & ENFORCE systems, should be used as evidence that the alien is not a LPR. Evidence of LPR status is available both on INS automated record systems and hard copy A-files.
3. Establishing conviction of an aggravated felony. The record of conviction must be placed in the ROP. The types of documentary evidence constituting proof of conviction in immigration proceedings include the following:
1. A record of judgment and conviction;
2. A record of plea, verdict and sentence;
3. A docket entry from court records that indicates the existence of a conviction;
4. Minutes of a court proceeding or a transcript of a hearing that indicates the existence of a conviction;
5. An abstract of a record of conviction prepared by the court in which the conviction was entered, or by a state official associated with the state's repository of criminal justice records, that indicates the following: the charge or section of law violated, the disposition of the case, the existence and date of conviction, and the sentence; or
6. Any document or record prepared by, or under the direction of, the court in which the conviction was entered that indicates the existence of a conviction.
4. Verifying identity. When questioning the alien and checking records and documents to determine whether the case meets the criteria for administrative removal, special care must be taken to verify his identity. The encountering officer is responsible for making absolutely certain that all information is completely consistent and there is no question whatsoever about the identity of the person or upon whom the Notice of Intent to Issue a Final Administrative Removal Order (NOI) will be served.
   The law specifically requires a determination for the record that the individual upon whom the NOI is served is, in fact, the alien named in the NOI. When the NOI is served in person, the INS officer serving the NOI verifies the identity of the person on whom it is served, and signs a statement to that effect in the Certificate of INS on the NOI.
   The NOI shall set forth the preliminary determinations and inform the alien of the INS's intent to issue a Form I-851-A, Final Administrative Removal Order, without a hearing before an immigration judge. The NOI shall constitute the charging document. The NOI shall include allegations of fact and conclusions of law. It shall advise the alien has the privilege of being represented at no expense to the government by counsel of the alien's choosing, as long as counsel is authorized to practice removal proceedings; may request withholding of removal to a particular country if he or she fears persecution or torture in that country; may inspect the evidence supporting the NOI; may rebut the charges within 10 calendar days after INS of such Notice (or 13 calendar days if Notice was by mail).
   A detainer should be served on the appropriate authorities at the correctional facility after the INS officer verifies the identity and immigration status of a criminal alien amenable to removal.
   Review for legal sufficiency. INS attorneys are available to provide advice regarding all aspects of cases being processed under Section 238(b) of the Act. Cases must be reviewed for legal sufficiency in accordance with outstanding instructions.
   Executing final removal order of deciding INS officer: Upon the issuance of a Final Administrative Order, the INS shall issue a Warrant of Removal and be executed no sooner than 14 calendar days after the date the Final Administrative Removal Order is issued, unless the alien knowingly, voluntarily, and in writing waives the 14-day period at the time of issuance of the NOI or at any time thereafter and up to the time the alien becomes the subject of a Warrant of Removal. The warrant is served when the alien is released to the INS. The alien is taken into custody under the authority of a Warrant of Arrest issued by a deciding INS Officer (District Director, Assistant District Director for Deportation, IRP Director).
5. Determining applicability of withholding of removal. While no relief from removal is available in these proceedings, cases may arise in which removal to a particular country must be withheld under Article 3 of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). However, an alien sentenced to an aggregate term of imprisonment of at least five years for his aggravated felony conviction(s) is considered to have committed a particularly serious crime and statutorily ineligible for withholding of removal. In addition, Article 3 of the CAT prohibits an alien's removal to a country where he or she is more likely than not to be tortured. There are no exceptions to this prohibition. Therefore, an alien with an aggravated felony conviction(s) may be entitled to protection under Article 3, even if he or she has been sentenced to five or more years' imprisonment.
6. Determining applicability of a waiver under Section 212(h) of the Act. An alien in administrative removal proceedings under section 238(b) of the INA is ineligible to apply for any discretionary relief. However, the Board of Immigration Appeals held that an alien not previously admitted to the United States as a LPR is statutorily eligible to seek a section 212(h) waiver despite an aggravated felony conviction. Based on this decision, a NTA must be served on the alien to begin removal proceedings before an immigration judge (see Section on Hearings Before an immigration judge).
   Reinstatement of Final Orders: Section 241(a)(5) of the Act provides that the Attorney General will reinstate (without referral to an immigration court) a final order against an alien who illegally reenters the United States after being deported, excluded, or removed from the United States under a final order. Before reinstating a prior order, the officer (Immigration or Special Agent) processing the case must determine:
1. that the alien believed to have reentered illegally was previously deported or removed from the United States. The processing officer must obtain the alien's A-file or copies of the documents contained therein to verify that the alien was subject to a final order and that the previous order was executed.
2. that the alien believed to have reentered illegally is the same alien as the one previously removed. If, in questioning an alien, he or she admits to being previously deported or removed, the Form I-213 and the sworn statement must so indicate. If a record check or fingerprint hit reveals such prior adverse action, that information must be included in the INS file. The alien should be questioned and confronted with any relevant adverse information from the A-file, record check or fingerprint hit, and such information must be included in the I-213 and sworn statement, if applicable.
   If the alien disputes the fact that he or she was previously removed, a comparison of the alien's fingerprints with those in the A-file documenting the previous removal must be completed to document positively the alien's identity. The Forensic Document Laboratory via photo phone or a locally available expert must complete the fingerprint comparison.
3. that the alien did in fact illegally reenter the United States. In making this determination, the officer shall consider all relevant evidence, including statements made by the alien and any evidence in the alien's possession. The immigration officer shall attempt to verify an alien's claim, if any, that he or she was lawfully admitted, which shall include check of INS data systems available to the officer.
   In any case in which the officer is not able to satisfactorily establish the preceding facts, the previous order cannot be reinstated, and the alien must be processed for removal through other applicable proceedings, such as administrative removal under section 238 of the Act, or removal proceedings before an immigration judge under section 240 of the Act.
   In all cases in which an order may be reinstated, the officer must create a record of sworn statement. The record of sworn statement will document admissions, if any, relevant to determining whether the alien is subject to reinstatement, and whether the alien expressed a fear of persecution or torture if returned on the reinstated order.
   In addition to covering the normal elements (identity, alienage, and the required elements listed above), the sworn statement must include the following question and the alien's response thereto: "Do you have any fear of persecution or torture should you be removed from the United States?" If the alien refuses to provide a sworn statement, the record should so indicate. An alien's refusal to execute a sworn statement does not preclude the INS from reinstating a prior order, provided that the record establishes that all of the required elements discussed in the above paragraphs have been satisfied. If the alien refuses to give a sworn statement, the processing officer must record whatever information the alien orally provided that relates to reinstatement of the order or to any claim of possible persecution.
   Once the processing officer is satisfied that the alien has been clearly identified and is subject to the reinstatement provision (and the sworn statement has been taken), the officer shall prepare Form I-871, Notice of Intent/Decision to Reinstate Prior Order. The processing officer completes and signs the top portion of the form, provides a copy to the alien, and retains a copy for the file. The officer must read, or have read the notice to the alien in a language the alien understands. The alien signs the second box of the file copy and indicates whether he intends to rebut the officer's determination. In the event that the alien declines to sign the form, the officer shall note the block that a copy of the form was provided, but that the alien declined to acknowledge receipt or provide any response. If the alien provides a response, the officer shall review the information provided and promptly determine whether reevaluation of the decision or further investigation is warranted. In not, or if no additional information is provided, the officer shall proceed with reinstatement based on the information already available.
   Review for legal sufficiency. INS attorneys are available to provide advice regarding all aspects of cases being processed under Section 241a of the Act. Cases must be reviewed for legal sufficiency in accordance with outstanding instructions.
   If, after considering the alien's response the processing officer is satisfied that the alien's prior order should be reinstated, the processing officer presents the Form I-871 and all relevant evidence to a deciding officer for review and signature at the bottom of the form. A deciding officer is any officer authorized to issue a Notice to Appear, i.e. District Directors, Assistant District Director for Investigations, Officers-In-Charge, IHP Directors.
   After the deciding officer signs the Form I-871 reinstating the prior order, the INS shall issue a new Warrant of Removal, Form I-205, in accordance with 8 CFR 241.2. The officer should indicate on the I-205 in the section reserved for provisions of law that removal is pursuant to section 241(a)(5) of the Act as amended by the IIRIRA.
   At the time of removal, the officer executing the reinstated final order must photograph the alien and obtain a classifiable rolled print of the alien's right index finger on the I-205. The alien and the officer taking the print must sign in the spaces provided. Once the final order has been executed, it must be attached to a copy of the previously executed documents, which establish the prior departure or removal. The officer executing the reinstated order must also serve the alien with a notice of penalties on Form I-294. The penalty period commences on the date the reinstated order is executed. Since this is his or her second (or subsequent) removal, the alien is subject to the 20-year bar, unless the alien is also an aggravated felon, in which case the lifetime bar applies. The officer should route the I-205 and a copy of the I-294 to the A-file. A comparison of the photographs and fingerprints between the original I-205 and the second I-205 executed at the time of reinstatement may prove essential in the event the reinstatement order is questioned at a later date.
   Removal Hearing before an immigration judge (Section 240 of the Act): There are three circumstances whereby a removal hearing may be initiated before an immigration judge:
   1. If a Deciding INS Officer (District Directors, Assistant District Director for Investigations, IRP Director) finds that the record of proceeding, including the alien's timely rebuttal, raises a genuine issue of material fact regarding the preliminary findings of an alien who initially has been processed as an administrative removal, the deciding officer may issue a notice to appear to initiate removal proceeding under section 240 of the Act.
   2. In general, all legal permanent residents are given the opportunity to present their case before an immigration judge.
   3. Aliens who have entered without inspection (EWI) (section 212 of the Act) are entitled to a removal hearing before an immigration judge.¹⁷ To initiate a hearing before an immigration judge, written notice, referred to as a Notice to Appear (NTA) (I-862), is either given to the alien in person or by mail if personal INS is not practicable.
      The NTA will specify the following: the nature of the proceedings against the criminal alien, the legal authority under which the proceedings are conducted, the acts or conduct alleged to be in violation of law, the charges against the alien, and the statutory provisions alleged to have been violated. No hearing date may be scheduled earlier than ten days from the date of INS of the NTA (to allow sufficient time to obtain counsel and prepare for the hearing). The NTA includes a waiver, which the alien may execute in order to obtain an earlier hearing date.
      Prior to serving the NTA to an alien, the following steps must be taken in each case referred to an immigration judge for a removal hearing:
      1. Search for existing INS records in CIS, DACS, or other appropriate automated systems. If an A-file exists, create a temporary file. If a file does not exist, follow local district procedures for creating an A-file.
      2. Complete Form I-213, Record of Inadmissible Alien.
      3. Complete Form I-826.
      4. Complete applicable sections of Form I-214.
      5. Provide photograph and fingerprints (2 sets) of the alien.
      6. Review the A-file to ensure that necessary court records or other evidence needed for the hearing are available.

The INS Legal Division prepares a Transmittal Memorandum for filing the NTA with the EOIR. The EOIR receives the transmittal memorandum and schedules the case received on the Master Calendar. The hearings are scheduled based on the institutional hearing site where the alien is incarcerated. The hearings are scheduled from 30 to 60 days from the receipt of the Transmittal Memorandum, depending on each site's hearing schedule. The EOIR sends copies of the Master Calendar to the Legal Division at the District Office. The Legal Division send notices of the hearing date to the alien respondent and/or their attorney. The Master Calendar hearing is held, and the alien respondent is advised by the immigration judge of the removal charges, the respondent's rights in a removal proceeding, and called upon to enter a plea. If, at the conclusion of the proceeding, the alien is found removable and a final order of removal is issued by the immigration judge, the A-File is forwarded by the Legal Assistant of the Detention and Removals Operations for removal processing following the completion of the criminal sentence to incarceration.

For a majority of removal hearings, more than one hearing may occur. The respondent may contest removal and request additional time to prepare a defense or secure representation. If the respondent contests removal, seeks representation, or is granted a continuance for other reasons, another hearing will be scheduled. A time period that may span from 30 to 60 days elapses between hearings whether they are Master Calendar hearings, subsequent Merit hearings, or Continuances.

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Footnotes

17. If the subject entered without inspection and was convicted of burglary, robbery, theft, or a crime of violence, with a sentence of less than a year a Notice to Appear (I-862) must be issued. If the sentence is over a year then a Notice of Intent to issue an Administrative Removal (I-851) should be issued.