Administrative Removal for Aggravated Felonies

Introduction

INA § 238(b) contains an administrative removal procedure for aliens who:

• Are not lawful permanent residents (LPRs); and
• Who are deportable for having been convicted of an “aggravated felony” in immigration law.[1]

This article will provide an overview of who is subject to administrative removal, the administrative removal procedure, and potential avenues for relief from administrative removal.

Persons Subject to Administrative Removal

In order to be subject to administrative removal found in 238(b), the alien must not be admitted for lawful permanent residence. While an LPR who is convicted of an immigration aggravated felony will very likely face adverse immigration consequences, he or she will not be subject to administrative removal found in 238(b). However, a conditional permanent resident (CR) will be subject to administrative removal if he or she is convicted of an aggravated felony before having the conditions removed from his or her permanent residency.[2] Parolees and aliens who enter without inspection (EWI) are also subject to administrative removal.[3]

Aggravated Felonies in Immigration Law

“Aggravated felony” has a specific meaning in the immigration context. The Immigration and Nationality Act lists “aggravated felonies” in INA § 101(a)(43). It is important to remember that the only crimes that may subject an alien to the administrative removal procedure found in 238(b) are the ones defined in section 101(a)(43). How a crime is classified in other contexts (such as state or federal law) is not relevant to whether it is an aggravated felony in immigration law.

The Administrative Removal Procedure

An alien who is subject to administrative removal is not entitled to a hearing before an Immigration Judge.

If an alien is found to be subject to administrative removal, he or she will be served with a Form I-851, Notice of Intent to Issue Final Administrative Removal Order. The alien may not be removed until 14 calendar days have elapsed from the date that the order was issued.[4] The alien must be provided with reasonable notice of the charges of removability and with the opportunity (at no expense to the government) to consult with counsel.[5]

Avenues for Relief from Administrative Removal

While limited, there are ways that an alien who has been issued a Form I-851 may endeavor to contest administrative removal. If an alien requests to see the findings supporting the removal order, he or she will have 10 calendar days to respond if the Form I-851 is delivered in person, and 13 calendar days if the I-851 is delivered by mail.

Regardless of the challenge, the alien must identify which findings are being challenged and accompany the challenge with affidavits, documentary information, and/or other evidence supporting the challenge.[6]

If the alien provides compelling evidence to rebut the removal charges, the officer handling the case may:

• Issue a request for more evidence;
• Place the alien in regular removal proceedings instead; or
• Rescind the charges entirely.[7]

The following are ways in which an alien may seek to avoid administrative removal.

Alien has a Claim to U.S. Citizenship or Lawful Permanent Residence

Because administrative removal is inapplicable for U.S. citizens and LPRs, an alien who believes that he or she has a claim to one of these statuses should press the claim immediately.

Conviction was not an “Aggravated Felony”

The alien may argue that the underlying conviction that triggered the issuance of the Form I-851 was not an “aggravated felony” under immigration law. If the conviction was not an aggravated felony, the alien will not be subject to administrative removal.

Request Withholding of Removal

If the alien has a fear of persecution or torture in his or her home country, he or she may request withholding of removal on account of that fear of persecution or torture. An alien who requests withholding of removal will be granted an interview with an asylum officer upon the issuance of a final order of removal.[8] If the alien establishes a “reasonable fear” of persecution or torture in the interview, withholding of removal may be granted. However, an alien who has been convicted of an aggravated felony may ultimately face a mandatory bar to asylum.

Advice

Because of the serious of administrative removal and the short time frame in which an alien has to attempt to rebut the charges, it is imperative that the alien consult with an experienced immigration attorney immediately if he or she intends to explore possible avenues to contest the removal order. While there is no guarantee that an alien facing administrative removal will be able to rebut the charges, an experienced immigration attorney will be able to assess the facts in the specific case and help the alien determine whether there exists a viable avenue for relief.

1. The deportability ground is found in INA § 237(a)(2)(A)(iii). “Aggravated felonies” are defined in INA § 101(a)(43).
2. INA § 238(b)(2)(B)
3. Bamba v. Riley, 366 F.3d 195 (3d Cir. 2004); U.S. v. Hernandez-Vermudez, 356 F.3d 1011 (9th Cir. 2004); Bazan-Reyes v. INS, 256 F.3d 600, 604–05 (7th Cir. 2001).
4. INA § 238(b)(3)
5. INA § 238(b)(4)
6. 8 C.F.R. § 238.1(c)(2)
7. 8 C.F.R. § 238.1(d)(2)(ii)
8. 8 C.F.R. § 238.1(f)(3)

Resources and Materials:

Alexander J Segal — “Administrative Removal for Aggravated Felonies”

Kurzban, Ira J. Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 561, 1101–1103, Print. Treatises & Primers.