Administrative Deportation of Aliens
At my immigration law office in Las Vegas, I often consult with persons who may have had a criminal conviction in the past and are concerned about the consequences of applying for immigration benefits such as US green cards and US citizenship. One group of criminal offenses described under immigration law as aggravated felonies carry harsh immigration consequences and may result in rapid deportation from the United States. This administrative removal process is the subject of this post.
Administrative Deportation of Aliens Convicted of an Aggravated Felony
The Attorney General through ICE may remove an alien who is not a lawful permanent resident (green card holder) from the United States without a hearing before an immigration judge based on a finding that the alien has a final conviction for an aggravated felony and is removable from United States under Section 237(a)(2)(A)(iii) of the INA.. This expedited removal procedure also applies to persons with conditional green cards such as those who obtained a green card by a marriage that is less than 2 years old.
Notice of Intent (NOI)
The administrative removal process begins when an ICE officer (the issuing officer) issues and serves Form I-851 Notice of Intent to issue a Final Administrative Deportation Order (Form I-851A) on the alien. The Notice of Intent (NOI) is a charging document that contains allegations of facts and conclusions of law.
The NOI must advise that the alien
- Has the privilege of being represented by counsel of the alien’s choosing, at no charge to the government
- May request withholding of removal to a particular country if he or she fears persecution or torture in that country
- May inspect the evidence in Support of the Notice of Intent
- May rebut the charges within 10 calendar days after service of such Notice (or 13 calendar days if Service was by mail).
Final Order of Deportation
Administrative Order of Removal made by a deciding service officer contains finding of facts and conclusions of law including a finding that the alien is not statutorily eligible for any relief from removal. By regulation the Deciding Service Officer cannot be the same Officer who issued the Notice of Intent. The Deciding Service Officer must issue and serve upon the alien a Final Administrative Order of Removal and an Administrative Removal Warrant (ICE Warrant). A detainer is served upon the appropriate authority having custody of the criminal alien (state prison or corrections facility) prior to his release into the custody of ICE.
For a Final Administrative Order to be issued the deportability of the alien must be established by clear, convincing and unequivocal evidence. If the Deciding Service Officer finds that the alien is not to be removed under INA 238(b), the deciding service offer must terminate the administrative proceedings and where appropriate begin a regular Section 240 removal proceeding before an immigration judge by issuing a notice to appear.
Execution of Final Order of Removal
The regulations prohibits ICE from executing a Warrant of Removal (based upon the Final Administrative Removal Order) until a 14 day waiting period has passed allowing the alien the opportunity to petition for Judicial Review unless such rights have been waived voluntarily, knowingly and in writing.
If the alien has requested withholding of removal, the Deciding Service Officer is to immediately refer the alien to an Asylum Officer to determine whether the alien has a reasonable fear of persecution or torture.