The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) replaced separate exclusion and deportation proceedings with a procedure called “removal proceedings” found in the Immigration and Nationality Act (INA) Section 240.
Removal proceedings commence when an individual is served with a Notice to Appear (NTA). The NTA usually contains the section of law the individual is accused of having violated, the factual basis charging the individual (“Respondent”) with inadmissibility or removability and the location, date and time of the removal hearing.
In removal proceedings, an immigration judge will decide whether the factual allegations in the NTA have been established. Then the immigration judge determines: (1) whether INA §212(a) bars admission to the arriving alien or individual who entered without proper inspection or a lawful permanent resident who is determined to be seeking admission at a port of entry, and (2) whether INA §237(a) requires removal of a properly admitted alien (including lawful permanent residents).
Provision INA § 212(a) lists all grounds of inadmissibility (not just criminal), that prevent an individual from obtaining legal status or entry into the U.S. Undocumented individuals detained in the U.S. and placed in removal proceedings will be subject to inadmissibility regulations at INA § 212(a). Even long-time permanent residents (green card holders) returning from a trip outside the U.S. may be subject to grounds of inadmissibility and placed in removal proceedings.
A lawful permanent resident may be considered to be seeking admission if they are returning to the United States and have committed one of the offenses listed in INA § 101(a)(13(C):
- Abandoned permanent resident status
- Absent from the U.S. for a continuous period of 180 days or more
- Engaged in illegal activity while outside the United States
- Left the United States while still in removal proceedings
- Committed a criminal offense listed in INA §212(a)(2) which does not fall within the petty offense, youthful offender, or Fleuti exception*
- Entered or tried to enter without inspection
*The Fleuti Exception states that LPRs whose criminal conviction was entered before April 1, 1997 will not be considered to be seeking an admission if they can show that the departure was brief, casual and innocent.
In removal proceedings alleging inadmissibility, the applicant carries the burden of proof and must establish he or she is “clearly and beyond doubt” entitled to be admitted.
Provision INA § 237(a) lists all grounds of removal (not just criminal). The provision applies to lawful permanent residents and any other individual who lawfully entered the U.S., even if status has expired.
There is an important distinction between provision of inadmissibility and removability, because it is possible to be inadmissible for a crime, but not removable. The reverse is also possible. For example, someone convicted of firearms offense may be removable under INA §237(a), but not inadmissible under INA §212(a). Aggravated felonies are defined at INA § 101(a)(43), 8 USC § 1101(a)(43). They are a deportation ground, but not ground of inadmissibility per se. An aggravated felony is also a bar to many forms of relief.
COMMON AGGRAVATED FELONIES REGARDLESS OF SENTENCE
- Sexual Abuse of a Minor
- Drug Trafficking
- Federal Drug Felonies
- Child Pornography
- Firearms Trafficking
- State Convictions analogous to Fed. Gun Felonies
- FTA Felony Trial or Sentence
Deceit or Fraud where Loss Exceeds $10,000
COMMON AGGRAVATED FELONIES ONLY IF A SENTENCE OF 1 YEAR OR MORE IS IMPOSED
- Theft/ Receive Stolen Property
- Crimes of Violence
- Obstruction of Justice
- Bribery of a Witness
- Commercial Bribery
- Altering VIN
In removal proceedings, the Department of Homeland Security has the burden of establishing a person is removable by “clear and convincing evidence”.
Crimes – INA 237(a)(2)
- Drug Conviction
(exception 30 grams of marijuana)
- Drug abuse since admission
- Aggravated Felony
- Firearm conviction
- Domestic Violence conviction
- Civil or criminal violation of a DV protective order
- Child Abuse conviction
- Crime of Moral Turpitude conviction/s:
2 since admission OR
1 within 5 years of admission if potential sentence is 1 year
Crimes – INA 212(a)(2)
- Drug Conviction
Admit to drug offense
- Current drug abuse
DHS has reason to believe trafficked in drugs
- 2 or more convictions of any type, aggregate sentence of 5 years
- Engaged in Prostitution
- Just 1 Crime of Moral Turpitude – but Petty Offense exception if one Crime of Moral Turpitude with a potential sentence of 1 year or less and sentence of 6 months or less imposed OR Youthful Offender Exception for minor convicted as adult.
If removal proceedings are contested the immigration judge will make a ruling on the issue of removability/inadmissibility. If the immigration judge finds that the respondent is not removable they will terminate removal proceedings. If the immigration judge finds that the respondent is removable then the respondent will need to file for relief from removal, if eligible.