IMMIGRATION LAW & POLICY Removal Procedures and Defenses

MATTER OF ARGUELLES-CAMPOS:  BIA RULES ON AVAILABILITY OF VOLUNTARY DEPARTURE IN REMOVAL PROCEEDINGS 
Immigrants' Rights Update, Vol. 13, No. 4, June 30, 1999

The Board of Immigration Appeals has issued a precedent decision regarding the availability of voluntary departure in removal proceedings.  The decision explains in detail the BIA’s interpretation of the statutory requirements for this relief, which is considerably more complicated than the relief of voluntary departure available in deportation proceedings.

The decision explains that there are actually three separate forms of voluntary departure in removal proceedings, with different eligibility requirements and conditions, depending upon the particular stage of the proceedings at which the noncitizen requests the relief.  These are (1) voluntary departure in lieu of removal proceedings, (2) voluntary departure requested prior to the conclusion of removal proceedings, and (3) voluntary departure requested at the conclusion of removal proceedings.

First, the Immigration and Naturalization Service can grant voluntary departure to noncitizens instead of charging them with removal and initiating proceedings, under 8 CFR section 240.25.  The INS does so by serving the individual with Form I-210 (Notice of Action: Voluntary Departure), indicating the period of time permitted for voluntary departure.  The INS may grant extensions of this period, but the total time permitted for voluntary departure, including any extensions, cannot exceed 120 days.  The INS can attach conditions to the grant of voluntary departure in order to ensure the individual’s timely departure, including requiring posting of a bond, or even continued detention pending departure.  The INS can revoke voluntary departure under this regulation without advance notice if it was improperly granted, but the revocation does not prevent the individual from applying for voluntary departure or other relief in removal proceedings.

Second, individuals in removal proceedings can apply for voluntary departure before the conclusion of the proceedings, under INA section 240B(a) ("pre-conclusion voluntary departure").  Under the regulations, this request must be made at or before the master calendar hearing at which the case is initially calendared for a merits hearing.   The immigration judge must rule on this request within 30 days.  Individuals who request this relief may not request any other relief from removal and must withdraw any other requests for relief that they previously made.  They must also have conceded removability and waived appeal of all issues.  This relief is not available to individuals who have been convicted of an aggravated felony or who are deportable on national security grounds.  The applicant does not need to establish good moral character, although this relief does require that the applicant merit a favorable exercise of discretion.  The IJ may grant voluntary departure under this provision for a period no longer than 120 days and may require other conditions to ensure departure, such as the posting of a bond.  The applicant must present the INS with documentation sufficient to assure his or her lawful entry into another country.  If the IJ is satisfied that the applicant is making diligent efforts to secure such documentation, the IJ may grant voluntary departure subject to the condition that the applicant present such documentation within 60 days. 

Third, individuals in removal proceedings may request voluntary departure at the conclusion of the proceedings, under INA section 240B(b).  This relief has stricter eligibility requirements.  Individuals must have been physically present in the United States for at least one year prior to the time they were served with a notice to appear for removal proceedings.  They also must show that they have had good moral character for the five-year period preceding their application for voluntary departure.   They cannot have been convicted of an aggravated felony or be removable on national security grounds.  They must also show that they have the means to depart the country and possess travel documents allowing them to do so.

In addition, individuals who apply for voluntary departure at the conclusion of removal proceedings must post a bond of at least $500.  The decision states that if this bond is not "timely posted" the IJ’s grant of voluntary departure is automatically vacated and an order of removal takes effect the following day.   Voluntary departure under this provision may not be granted for a period of more than 60 days.

The decision states that the same factors that are relevant to discretionary determinations regarding voluntary departure in deportation proceedings also apply to the exercise of discretion in removal proceedings.  However, an IJ has broader authority to grant voluntary departure prior to the conclusion of removal proceedings than at the conclusion of those proceedings or in deportation proceedings.

Individuals who previously were granted voluntary departure in removal proceedings are ineligible for a second grant, whether prior to or at the conclusion of removal proceedings.  However, prior grants of voluntary departure in deportation proceedings do not disqualify applicants from voluntary departure in removal proceedings.  Thus, even though the respondent in the case before the BIA had previously been granted voluntary departure in deportation proceedings on five occasions, he was still eligible for voluntary departure in removal proceedings.

In this case, the respondent initially requested to apply for cancellation of removal but withdrew the request and applied for voluntary departure at his second master calendar hearing, before the case was scheduled for a merits hearing.  Accordingly, he was eligible for pre-conclusion voluntary departure under INA section 240B(a).  However, the IJ denied voluntary departure in the exercise of discretion.  Although the respondent had waived appeal in order to apply for pre-conclusion voluntary departure, the BIA concluded that it still had jurisdiction to consider the appeal.  Thus, a respondent who waives appeal in order to request pre-conclusion voluntary departure may nonetheless appeal a denial of voluntary departure.

The BIA upheld the IJ’s determination that the respondent did not merit voluntary departure in the exercise of discretion.  The BIA noted that the respondent had been granted voluntary departure in deportation proceedings on five occasions, two of them within three months of the initiation of removal proceedings, and each time returned to his two children and their mother in the U.S.  The BIA found that the IJ could reasonably conclude that the respondent "simply viewed grants of voluntary departure as a means to avoid immigration proceedings."  It agreed with the IJ that the respondent’s past immigration history outweighed the positive equities in his case.

BIA members Edward Grant and Paul Schmidt issued a concurring opinion in which they noted that the statute does not require that pre-conclusion voluntary departure be requested before a merits hearing is calendared.  They questioned the wisdom of requiring respondents to opt for this relief before the merits hearing, where "the issues in the case may have become more clear."  They also noted that individuals may unwittingly lose the opportunity to seek this relief, both because IJs do not routinely advise respondents that they will become ineligible for the relief at the time that a merits hearing is scheduled, and because respondents—and even BIA members—are often confused as to what constitutes a "master calendar" hearing.  They urged IJs to state at each hearing whether it is a master calendar or merits hearing and to advise respondents at the appropriate moment that they may lose eligibility for pre-conclusion voluntary departure.

BIA member Lory Rosenberg issued a separate opinion, further questioning the regulations and especially their requirement that respondents requesting pre-conclusion voluntary departure waive all rights to seek other relief and to appeal.  She expressed particular concern with the process by which the respondent in this case essentially lost the right to a removal hearing.

Matter of Arguelles-Campos, Int. Dec. 3399 (BIA June 7, 1999).

IMMIGRATION LAW & POLICY Removal Procedures and Defenses

MATTER OF ARGUELLES-CAMPOS:  BIA RULES ON AVAILABILITY OF VOLUNTARY DEPARTURE IN REMOVAL PROCEEDINGS 
Immigrants' Rights Update, Vol. 13, No. 4, June 30, 1999

The Board of Immigration Appeals has issued a precedent decision regarding the availability of voluntary departure in removal proceedings.  The decision explains in detail the BIA’s interpretation of the statutory requirements for this relief, which is considerably more complicated than the relief of voluntary departure available in deportation proceedings.

The decision explains that there are actually three separate forms of voluntary departure in removal proceedings, with different eligibility requirements and conditions, depending upon the particular stage of the proceedings at which the noncitizen requests the relief.  These are (1) voluntary departure in lieu of removal proceedings, (2) voluntary departure requested prior to the conclusion of removal proceedings, and (3) voluntary departure requested at the conclusion of removal proceedings.

First, the Immigration and Naturalization Service can grant voluntary departure to noncitizens instead of charging them with removal and initiating proceedings, under 8 CFR section 240.25.  The INS does so by serving the individual with Form I-210 (Notice of Action: Voluntary Departure), indicating the period of time permitted for voluntary departure.  The INS may grant extensions of this period, but the total time permitted for voluntary departure, including any extensions, cannot exceed 120 days.  The INS can attach conditions to the grant of voluntary departure in order to ensure the individual’s timely departure, including requiring posting of a bond, or even continued detention pending departure.  The INS can revoke voluntary departure under this regulation without advance notice if it was improperly granted, but the revocation does not prevent the individual from applying for voluntary departure or other relief in removal proceedings.

Second, individuals in removal proceedings can apply for voluntary departure before the conclusion of the proceedings, under INA section 240B(a) ("pre-conclusion voluntary departure").  Under the regulations, this request must be made at or before the master calendar hearing at which the case is initially calendared for a merits hearing.   The immigration judge must rule on this request within 30 days.  Individuals who request this relief may not request any other relief from removal and must withdraw any other requests for relief that they previously made.  They must also have conceded removability and waived appeal of all issues.  This relief is not available to individuals who have been convicted of an aggravated felony or who are deportable on national security grounds.  The applicant does not need to establish good moral character, although this relief does require that the applicant merit a favorable exercise of discretion.  The IJ may grant voluntary departure under this provision for a period no longer than 120 days and may require other conditions to ensure departure, such as the posting of a bond.  The applicant must present the INS with documentation sufficient to assure his or her lawful entry into another country.  If the IJ is satisfied that the applicant is making diligent efforts to secure such documentation, the IJ may grant voluntary departure subject to the condition that the applicant present such documentation within 60 days. 

Third, individuals in removal proceedings may request voluntary departure at the conclusion of the proceedings, under INA section 240B(b).  This relief has stricter eligibility requirements.  Individuals must have been physically present in the United States for at least one year prior to the time they were served with a notice to appear for removal proceedings.  They also must show that they have had good moral character for the five-year period preceding their application for voluntary departure.   They cannot have been convicted of an aggravated felony or be removable on national security grounds.  They must also show that they have the means to depart the country and possess travel documents allowing them to do so.

In addition, individuals who apply for voluntary departure at the conclusion of removal proceedings must post a bond of at least $500.  The decision states that if this bond is not "timely posted" the IJ’s grant of voluntary departure is automatically vacated and an order of removal takes effect the following day.   Voluntary departure under this provision may not be granted for a period of more than 60 days.

The decision states that the same factors that are relevant to discretionary determinations regarding voluntary departure in deportation proceedings also apply to the exercise of discretion in removal proceedings.  However, an IJ has broader authority to grant voluntary departure prior to the conclusion of removal proceedings than at the conclusion of those proceedings or in deportation proceedings.

Individuals who previously were granted voluntary departure in removal proceedings are ineligible for a second grant, whether prior to or at the conclusion of removal proceedings.  However, prior grants of voluntary departure in deportation proceedings do not disqualify applicants from voluntary departure in removal proceedings.  Thus, even though the respondent in the case before the BIA had previously been granted voluntary departure in deportation proceedings on five occasions, he was still eligible for voluntary departure in removal proceedings.

In this case, the respondent initially requested to apply for cancellation of removal but withdrew the request and applied for voluntary departure at his second master calendar hearing, before the case was scheduled for a merits hearing.  Accordingly, he was eligible for pre-conclusion voluntary departure under INA section 240B(a).  However, the IJ denied voluntary departure in the exercise of discretion.  Although the respondent had waived appeal in order to apply for pre-conclusion voluntary departure, the BIA concluded that it still had jurisdiction to consider the appeal.  Thus, a respondent who waives appeal in order to request pre-conclusion voluntary departure may nonetheless appeal a denial of voluntary departure.

The BIA upheld the IJ’s determination that the respondent did not merit voluntary departure in the exercise of discretion.  The BIA noted that the respondent had been granted voluntary departure in deportation proceedings on five occasions, two of them within three months of the initiation of removal proceedings, and each time returned to his two children and their mother in the U.S.  The BIA found that the IJ could reasonably conclude that the respondent "simply viewed grants of voluntary departure as a means to avoid immigration proceedings."  It agreed with the IJ that the respondent’s past immigration history outweighed the positive equities in his case.

BIA members Edward Grant and Paul Schmidt issued a concurring opinion in which they noted that the statute does not require that pre-conclusion voluntary departure be requested before a merits hearing is calendared.  They questioned the wisdom of requiring respondents to opt for this relief before the merits hearing, where "the issues in the case may have become more clear."  They also noted that individuals may unwittingly lose the opportunity to seek this relief, both because IJs do not routinely advise respondents that they will become ineligible for the relief at the time that a merits hearing is scheduled, and because respondents—and even BIA members—are often confused as to what constitutes a "master calendar" hearing.  They urged IJs to state at each hearing whether it is a master calendar or merits hearing and to advise respondents at the appropriate moment that they may lose eligibility for pre-conclusion voluntary departure.

BIA member Lory Rosenberg issued a separate opinion, further questioning the regulations and especially their requirement that respondents requesting pre-conclusion voluntary departure waive all rights to seek other relief and to appeal.  She expressed particular concern with the process by which the respondent in this case essentially lost the right to a removal hearing.

Matter of Arguelles-Campos, Int. Dec. 3399 (BIA June 7, 1999).

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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.

INA: ACT 240 - REMOVAL PROCEEDINGS

Sec. 240. 1/ (a) Proceeding.-

(1) In general.-An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.

(2) Charges.-An alien placed in proceedings under this section may be charged with any applicable ground of inadmissibility under section 212(a) or any applicable ground of deportability under section 237(a) .

(3) Exclusive procedures.-Unless otherwise specified in this Act, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States. Nothing in this section shall affect proceedings conducted pursuant to section 238. 

(b) Conduct of Proceeding.-

(1) Authority of immigration judge.-The immigration judge shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses. The immigration judge may issue subpoenas for the attendance of witnesses and presentation of evidence. The immigration judge shall have authority (under regulations prescribed by the Attorney General) to sanction by civil money penalty any action (or inaction) in contempt of the judge's proper exercise of authority under this Act.

(2) Form of proceeding.- 

(A) In general.-The proceeding may take place-

(i) in person,

(ii) where agreed to by the parties, in the absence of the alien,

(iii) through video conference, or

(iv) subject to subparagraph (B), through telephone conference.

(B) Consent required in certain cases.-An evidentiary hearing on the merits may only be conducted through a telephone conference with the consent of the alien involved after the alien has been advised of the right to proceed in person or through video conference. 

(3) Presence of alien.-If it is impracticable by reason of an alien's mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.

(4) Aliens rights in proceeding.-In proceedings under this section, under regulations of the Attorney General-

(A) the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien's choosing who is authorized to practice in such proceedings,

(B) the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the Government but these rights shall not entitle the alien to examine such national security information as the Government may proffer in opposition to the alien's admission to the United States or to an application by the alien for discretionary relief under this Act, and

(C) a complete record shall be kept of all testimony and evidence produced at the proceeding. 

(5) Consequences of failure to appear.-

(A) In general.-Any alien who, after written notice required under paragraph (1) or (2) of section 239(a) has been provided to the alien or the alien's counsel of record, does not attend a proceeding under this section, shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable (as defined in subsection (e)(2)). The written notice by the Attorney General shall be considered sufficient for purposes of this subparagraph if provided at the most recent address provided under sectio n 239(a)(1)(F) . 

(B) No notice if failure to provide address information.- No written notice shall be required under subparagraph (A) if the alien has failed to provide the address required under section 239(a)(1)(F) .

(C) Rescission of order.-Such an order may be rescinded only-

(i) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (e)(1)), or

(ii) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of section 239(a) or the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien.

The filing of the motion to reopen described in clause (i) or (ii) shall stay the removal of the alien pending disposition of the motion by the immigration judge.

(D) Effect on judicial review.-Any petition for review under section 242 of an order entered in absentia under this paragraph shall (except in cases described in section 242(b)(5) ) be confined to (i) the validity of the notice provided to the alien, (ii) the reasons for the alien's not attending the proceeding, and (iii) whether or not the alien is removable.

(E) Additional application to certain aliens in contiguous territory.-The preceding provisions of this paragraph shall apply to all aliens placed in proceedings under this section, including any alien who remains in a contiguous foreign territory pursuant to section 235(b)(2)(C).

(6) Treatment of frivolous behavior.-The Attorney General shall, by regulation-

(A) define in a proceeding before an immigration judge or before an appellate administrative body under this title, frivolous behavior for which attorneys may be sanctioned,

(B) specify the circumstances under which an administrative appeal of a decision or ruling will be considered frivolous and will be summarily dismissed, and

(C) impose appropriate sanctions (which may include suspension and disbarment) in the case of frivolous behavior.

Nothing in this paragraph shall be construed as limiting the authority of the Attorney General to take actions with respect to inappropriate behavior.

(7) Limitation on discretionary relief for failure to appear.- Any alien against whom a final order of removal is entered in absentia under this subsection and who, at the time of the notice described in paragraph (1) or (2) of section 239(a) , was provided oral notice, either in the alien's native language or in another language the alien understands, of the time and place of the proceedings and of the consequences under this paragraph of failing, other than because of exceptional circumstances (as defined in subsection (e)(1)) to attend a proceeding under this section, shall not be eligible for relief under section 240A , 240B , 245 , 248 , or 249 for a period of 10 years after the date of the entry of the final order of removal. 

(c) Decision and Burden of Proof.- 

(1) Decision.-

(A) In general.-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.

(B) Certain medical decisions.-If a medical officer or civil surgeon or board of medical officers has certified under section 232(b) that an alien has a disease, illness, or addiction which would make the alien inadmissible under paragraph (1) of section 212(a) , the decision of the immigration judge shall be based solely upon such certification.

(2) Burden on alien.-In the proceeding the alien has the burden of establishing-

(A) if the alien is an applicant for admission, that the alien is clearly and beyond doubt entitled to be admitted and is not inadmissible under section 212; or

(B) by clear and convincing evidence, that the alien is lawfully present in the United States pursuant to a prior admission.

In meeting the burden of proof under subparagraph (B), the alien shall have access to the alien's visa or other entry document, if any, and any other records and documents, not considered by the Attorney General to be confidential, pertaining to the alien's admission or presence in the United States.

(3) Burden on service in cases of deportable aliens.-

(A) In general.-In the proceeding the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable. No decision on deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.

(B) Proof of convictions.-In any proceeding under this Act, any of the following documents or records (or a certified copy of such an official document or record) shall constitute proof of a criminal conviction:

(i) An official record of judgment and conviction.

(ii) An official record of plea, verdict, and sentence.

(iii) A docket entry from court records that indicates the existence of the conviction.

(iv) Official minutes of a court proceeding or a transcript of a court hearing in which the court takes notice of the existence of the conviction.

(v) 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 charge or section of law violated, the disposition of the case, the existence and date of conviction, and the sentence.

(vi) 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.

(vii) Any document or record attesting to the conviction that is maintained by an official of a State or Federal penal institution, which is the basis for that institution's authority to assume custody of the individual named in the record.

(C) Electronic records.-In any proceeding under this Act, any record of conviction or abstract that has been submitted by electronic means to the Service from a State or court shall be admissible as evidence to prove a criminal conviction if it is-

(i) certified by a State official associated with the State's repository of criminal justice records as an official record from its repository or by a court official from the court in which the conviction was entered as an official record from its repository, and

(ii) certified in writing by a Service official as having been received electronically from the State's record repository or the court's record repository.

A certification under clause (i) may be by means of a computer-generated signature and statement of authenticity.

(4) 3/ APPLICATIONS FOR RELIEF FROM REMOVAL-

(A) IN GENERAL- An alien applying for relief or protection from removal has the burden of proof to establish that the alien--

(i) satisfies the applicable eligibility requirements; and

(ii) with respect to any form of relief that is granted in the exercise of discretion, that the alien merits a favorable exercise of discretion.

(B) SUSTAINING BURDEN- The applicant must comply with the applicable requirements to submit information or documentation in support of the applicant's application for relief or protection as provided by law or by regulation or in the instructions for the application form. In evaluating the testimony of the applicant or other witness in support of the application, the immigration judge will determine whether or not the testimony is credible, is persuasive, and refers to specific facts sufficient to demonstra te that the applicant has satisfied the applicant's burden of proof. In determining whether the applicant has met such burden, the immigration judge shall weigh the credible testimony along with other evidence of record. Where the immigration judge determines that the applicant should provide evidence which corroborates otherwise credible testimony, such evidence must be provided unless the applicant demonstrates that the applicant does not have the evidence and cannot reasonably obtain the evidence.

(C) CREDIBILITY DETERMINATION- Considering the totality of the circumstances, and all relevant factors, the immigration judge may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the intern al consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness sh all have a rebuttable presumption of credibility on appeal.

(5) 3/ Notice.-If the immigration judge decides that the alien is removable and orders the alien to be removed, the judge shall inform the alien of the right to appeal that decision and of the consequences for failure to depart under the order of removal, including civil and criminal penalties.

(6) 3/ Motions to reconsider.-

(A) In general.-The alien may file one motion to reconsider a decision that the alien is removable from the United States.

(B) Deadline.-The motion must be filed within 30 days of the date of entry of a final administrative order of removal.

(C) Contents.-The motion shall specify the errors of law or fact in the previous order and shall be supported by pertinent authority. 

(7) 3/ Motions to reopen.-

(A) In general.-An alien may file one motion to reopen proceedings under this section , 3a/ except that this limitation shall not apply so as to prevent the filing of one motion to reopen described in subparagraph (C)(iv) .

(B) Contents.-The motion to reopen shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material. 

(C) Deadline.-

(i) In general.-Except as provided in this subparagraph, the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.

(ii) Asylum.-There is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for relief under sections 208 or 241(b)(3) and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.

(iii) Failure to appear.-The filing of a motion to reopen an order entered pursuant to subsection (b)(5) is subject to the deadline specified in subparagraph (C) of such subsection.

(iv) 2/ SPECIAL RULE FOR BATTERED 3a/ SPOUSES, CHILDREN, AND PARENTS - 3a/ Any limitation under this section on the deadlines for filing such motions shall not apply' --

(I) if the basis for the motion is to apply for relief under clause (iii) or (iv) of section 204(a)(1)(A) , clause (ii) or (iii) of section 204(a)(1)(B), 3a/ , section 240A(b) , or section 244(a)(3) (as in effect on March 31, 1997) ;

(II) if the motion is accompanied by a cancellation of removal application to be filed with the Attorney General or by a copy of the self-petition that has been or will be filed with the Immigration and Naturalization Service upon the granting of the motion to reopen; 3a/

(III) if the motion to reopen is filed within 1 year of the entry of the final order of removal, except that the Attorney General may, in the Attorney General's discretion, waive this time limitation in the case of an alien who demonstrates extraordinary circumstances or extreme hardship to the alien's child; and 3a/

(IV) 3a/ if the alien is physically present in the United States at the time of filing the motion.

The filing of a motion to reopen under this clause shall only stay the removal of a qualified alien (as defined in section 431(c)(1)(B) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1641(c)(1)(B))) pending the final disposition of the motion, including exhaustion of all appeals if the motion establishes that the alien is a qualified alien.

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