Summary Proceedings Involving Deportation WIthout a Legal Hearing
If you are found to be removable from the U.S. by an immigration officer, you may expect to have the opportunity to make your case before an immigration judge. Unfortunately, a foreign national does not always have this right. Many foreign nationals are removed from the U.S. through various types of summary proceedings, without any involvement by a judge. Perhaps the most common type of summary proceeding is expedited removal. This discussion focuses on the other two main types of summary proceedings, which are known as reinstatement of removal and administrative removal. A foreign national may be subject to removal without a hearing before a judge in a few other rare cases that are not covered here.
You have a limited right to review of a summary removal order if you file a petition in federal court within 30 days of the order. (Federal court is separate from immigration court.) Different federal courts rule differently on these issues, although a foreign national likely will be able to defeat the order if they can show that immigration authorities made a mistake about their legal status. You should retain an immigration lawyer if you are interested in pursuing an appeal.
Reinstatement of Removal
You may be subject to summary removal if you were previously subject to an order of removal, and then you entered or tried to enter the U.S. unlawfully. Immigration authorities may find that a foreign national was subject to this type of order once they check their identity. If they were, the Department of Homeland Security (DHS) will reinstate the order of removal through Form I-871, which the foreign national must sign. A foreign national might be able to defeat a reinstatement of removal if they can reopen their previous removal case, get prosecutorial discretion, or show that they qualify for one of the exceptions below.
When an Exception Applies
If a specific exception applies, such as the exception for foreign nationals applying for adjustment of status under NACARA, an immigration officer may not reinstate the order of removal until a final decision is made to deny the adjustment of status application. If the application for adjustment of status is granted, the prior order of removal will be moot.
An exception applies to foreign nationals who have lived illegally in the U.S. since 1982. They might be able to adjust their status to legal permanent residence even if they were ordered to be removed and illegally returned to the U.S. Another exception may apply to certain people who are related to residents of Haiti who adjusted their status to legal permanent residence before March 2000. You also may be able to defeat a reinstatement of removal if you are a citizen of Nicaragua, Cuba, El Salvador, Guatemala, or a country that was formerly part of the Soviet Union. You would need to see whether you are covered by a federal law called NACARA.
If you have a credible fear of persecution if you return to your home country, or a reasonable fear of torture there, you may be able to work around a reinstatement of removal. You would need to go through a credible fear interview or a reasonable fear interview with an asylum officer, who would decide whether you may qualify for protection.
A foreign national who is convicted of an aggravated felony and who does not have a green card may be subject to administrative removal. Administrative removal involves issuing Form I-851, which is known as a Notice of Intent to Issue Final Administrative Removal Order. You may be able to get assistance from an attorney during this process, which tends to be more extended than expedited removal or reinstatement of removal. As with other types of summary proceedings, administrative removal is a discretionary option, and you may be placed in regular removal proceedings instead.
Administrative Removal Defenses
A foreign national may be able to defeat administrative removal by claiming asylum if they fear persecution in their home country. Most of the other defenses to reinstatement of removal do not apply.