Removal Proceedings: Inadmissibility v. Deportability

A “removal” proceeding is the name for the proceeding at which a noncitizen’s inadmissibility or deportability is decided.

§212 of the Immigration and Nationality Act (INA) describes grounds for inadmissibility of noncitizens and INA §237(a) describes grounds for deportability of noncitizens. Both grounds for removal have their own form of discretionary waivers.

The crux in determining whether a person is subject to inadmissibility laws versus deportation laws is the status of their admittance to the U.S.

Noncitizens who enter the United States without having been “admitted” or paroled are inadmissible rather than deportable and therefore subject to INA §212 rather than INA§237(a) at removal proceedings.

A special category of noncitizens, Lawful Permanent Residents (LPR’s), are presumed not to be applicants for admission.  When initiating removal proceedings, the government bears the burden of proving that an exception in INA § 101(a)(13)(C) applies to the LPR.

The exceptions for LPR’s are as follows:

(i) has abandoned or relinquished that status  (as an alien lawfully admitted for permanent residence in the U.S.),

(ii) has been absent from the United States for a continuous period in excess of 180 days,

(iii) has engaged in illegal activity after having departed the U.S.,

(iv) has departed from the U.S. “while under legal process seeking removal of the alien from the U.S.” including removal proceedings under the INA and extradition proceedings,

(v) has committed an offense identified in §212(a)(2) (i.e. “criminal and related grounds” unless the alien has been granted a waiver under 212(h), or

(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the U.S. after inspection and authorization by an immigration officer.

INA § 101(a)(13)(C)

LPR’s meeting any of the above exceptions may be found inadmissible and therefore placed in removal proceedings.

The Department of Homeland Security will start the formal process of removal proceedings by serving a noncitizen with a “Notice to Appear” The document will specify the alleged factual and statutory grounds for the noncitizens deportability or inadmissibility. If the person is found deportability, the presiding immigration judge will decide whether the person is eligible for, and deserving of, any affirmative discretionary relief that they have applied for. DHS or the individual can appeal the immigration judge’s order to the Board of Immigration Appeals (BIA). Only DHS can obtain judicial review of the BIA decision.

Stephen H. Legomsky & Cristina M. Rodriguez, Immigration and Refugee Law and Policy (6th ed. 2009).

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