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.
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.
Administrative Removal
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.
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.
Immigration Law Center Contents
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Immigration Law Center
- Green Cards and Lawful Permanent Residence in the U.S.
- Becoming a U.S. Citizen Under Naturalization Law
- Immigrant Visas Leading to Lawful Permanent Residence in the U.S.
- Non-Immigrant Visas Providing a Legal Basis for Temporary Residence in the U.S.
- Work Visas Allowing Foreign Nationals to Legally Enter the U.S.
- Family Immigration Options Under the Law
- Investor Visas Providing Legal Status in the U.S.
- Visitor Visas Allowing Foreign Nationals to Legally Enter the U.S.
- Student Visas Allowing Foreign Nationals to Legally Enter the U.S.
- Denials of Visas or Green Cards & Your Legal Options
- Consular Interviews When Seeking a Visa or Green Card
- VAWA Petitions for Foreign Nationals Affected by Domestic Violence & Seeking Legal Status in the U.S.
- How Children of Foreign Nationals Affected by Domestic Violence Can Legally Obtain Immigration Status
- Work Authorization for Foreign Nationals Without Green Cards
- How Foreign Nationals Unable to Return Home Safely May Legally Qualify for Temporary Protected Status
- Asylum for Foreign National Refugees
- Humanitarian Parole for Foreign Nationals With Compelling Needs
- Advance Parole for Foreign Nationals Living in the U.S. Without Green Cards
- Deferred Action for Childhood Arrivals (DACA) and Temporary Legal Protections From Deportation
- Visa Waiver Program for Brief Visits to the U.S. Without Formal Legal Status
- Grounds for Finding a Foreign National Legally Inadmissible to the U.S.
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How the Deportation Legal Process Works
- When Criminal Convictions Are Legal Grounds for Deportation
- False Claims of Citizenship Leading to Deportation
- Guilty Pleas and No Contest Pleas Leading to Deportation
- Postponing Legal Hearings in Immigration Court
- Changing Venue for Legal Proceedings in Immigration Court
- Witnesses in Legal Proceedings in Immigration Court
- Summary Proceedings Involving Deportation WIthout a Legal Hearing
- Deferred Inspection Appointments for Lawful Permanent Residents Returning to the U.S.
- The Notice to Appear and the Start of Legal Proceedings in Immigration Court
- Master Calendar Hearings in Legal Proceedings in Immigration Court
- Merits Hearings in Legal Proceedings in Immigration Court
- Defenses to Deportation for Foreign Nationals Without Legal Status in the U.S.
- Orders of Removal Following Failure to Appear for Legal Proceedings in Immigration Court
- When Government Lawyers Appeal Immigration Court Decisions
- Cancellation of Removal for Green Card Holders
- Cancellation of Removal Without a Green Card
- Adjustment of Status to Lawful Permanent Residence in Deportation Proceedings
- Voluntary Departure as a Legal Alternative to Deportation
- Detention During Deportation Proceedings & Legal Recourse
- Waivers of Alien Smuggling When Seeking Immigration Relief or a Green Card
- Custody & Related Legal Issues for Children of Arrested or Deported Foreign Nationals
- Prosecutorial Discretion in Deportation Proceedings
- Appeals of Immigration Decisions Through the Legal Process
- LGBTQ+ Individuals Facing Immigration Legal Issues
- Inspections of Foreign Nationals Seeking to Legally Enter the U.S.
- Unlawful Presence in the U.S. & Legal Penalties
- Tax Law Issues for Visa or Green Card Holders
- Waivers of Legal Inadmissibility to the U.S.
- How a Criminal Record Legally Affects Immigration Status
- How Social Media Use Can Affect Legal Admissibility to the U.S.
- Immigration Law FAQs
- Immigration Legal Forms
- Find an Immigration Law Lawyer
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