Immigration Enforcement Actions Process in the United States

Inspection Process

All aliens who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States are inspected. U.S. Customs and Border Protection (CBP) officers within the Office of Field Operations (OFO) determine the admissibility of aliens who are applying for admission to the United States at designated ports of entry.

Applicants for admission determined to be inadmissible may be, as appropriate, permitted to voluntarily withdraw their application for admission and return to their home country, processed for expedited removal or referred to an immigration judge for removal proceedings. CBP officers may transfer aliens issued a charging document (e.g., Notice to Appear (NTA), Notice of Referral to an Immigration Judge) to the U.S. Immigration and Customs Enforcement (ICE) for detention and custody determinations. Aliens who apply under the Visa Waiver Program (VWP) who are found to be inadmissible are refused admission without referral to an immigration judge, per Section 217 of the Immigration and Nationality Act (INA), unless the alien requests asylum.

Apprehension Process

Aliens who enter without inspection between ports of entry and are apprehended by U.S. Border Patrol (USBP) of the U.S. Customs and Border Protection may be, as appropriate, removed, permitted to return to their country, or issued a NTA to commence proceedings before the immigration court. Aliens issued a charging document are either transferred to the U.S. Immigration and Customs Enforcement for detention and custody determinations pending a hearing or released on their own recognizance. Beginning in FY12, the U.S. Border Patrol implemented the Consequence Delivery System (CDS) across all sectors.

The Consequence Delivery System guides U.S. Border Patrol agents through a process designed to uniquely evaluate each subject and identify the ideal consequences to deliver to impede and deter further illegal activity. The Consequence Delivery System consequences can include administrative, criminal, or programmatic actions.

Aliens unlawfully present in the United States and those lawfully present who are subject to removal may be identified and apprehended by ICE within the interior of the United States. The agency’s two primary operating components are Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO). The U.S. Immigration and Customs Enforcement may identify aliens in violation of their status for removal while they are incarcerated, during worksite enforcement operations, or through other means. Aliens apprehended by ICE are generally subject to the same consequences as aliens who are apprehended by USBP.

Benefit Denial

The U.S. Citizenship and Immigration Services (USCIS) has authority to issue an NTA or otherwise refer an alien for removal proceedings upon determining that an alien is inadmissible or has violated immigration law pursuant to INA Sections 212 and 237. The U.S. Citizenship and Immigration Services will also issue an NTA when required by statute or regulation (as authorized by Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens), e.g., termination of conditional permanent resident status, denial of asylum application, termination of refugee status, or positive credible fear determination.

Detention Process

The Detention, in the U.S. immigration context, means the physical custody of an alien in order to hold him/her, pending a determination on whether the alien is to be removed from the United States or awaiting return transportation to his/her country of citizenship after a final order of removal has been entered.

Following arrest or transfer of custody from the U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement or ERO makes custody redeterminations, which may result in detention or release on bond, orders of supervision, or orders of recognizance. An alien may be detained during the pendency of removal proceedings, and, if an alien is ordered removed, the alien may be detained for a certain period of time pending repatriation.

Removal Process

The Removal, in the U.S. immigration law, is the compulsory and confirmed movement of an inadmissible or deportable alien out of the United States based on an order of removal. An alien who is removed has administrative or criminal consequences placed on subsequent reentry.

Removal proceedings include the administrative process that leads to the removal of an alien pursuant to Sections 237 or 212 of the INA. Unless eligible for relief, the most common dispositions for aliens found within the United States, are returns, expedited removals, reinstatements of final orders and removal obtained through removal proceedings.

Return

The Return, in the U.S. immigration sense, is the confirmed movement of an inadmissible or deportable alien out of the United States not based on an order of removal.

Certain apprehended aliens who appear to be inadmissible or deportable may be offered the opportunity to voluntarily return to their home country in lieu of formal removal proceedings before an immigration judge. Examples include voluntary departure under INA § 240B, the Visa Waiver Program returns under INA § 217(b), crewmembers under INA § 252(b) and stowaways under INA § 217(b).

Generally, aliens waive their right to a hearing, remain in custody, and, if applicable, agree to depart the United States under supervision. Some aliens apprehended within the United States may agree to voluntarily depart and pay the expense of departing. Voluntary departure may be granted by an immigration judge, during an immigration hearing or prior to an immigration hearing by certain DHS officials.

Expedited Removal

The Expedited Removal in the U.S. immigration law is the removal without a hearing before an immigration judge of an alien arriving in the United States who is inadmissible because the individual does not possess valid entry documents or is inadmissible for fraud or misrepresentation of material fact; or the removal of an alien who has not been admitted or paroled in the United States and who has not affirmatively shown to the satisfaction of an immigration officer, that the alien had been physically present in the United States for the immediately preceding 2-year period (INA § 235(b)(1)(A)).

DHS officers and agents may order the expedited removal of certain aliens who are inadmissible because they do not possess valid entry documents or are inadmissible for fraud or misrepresentation of material fact; or because the alien, who has not been admitted or paroled in the United State, has not affirmatively shown to the satisfaction of an immigration officer, that the alien had been physically present in the United States for the
immediately preceding 2-year period. Aliens placed in expedited removal proceedings are generally not entitled to immigration proceedings before an immigration judge unless the alien is seeking asylum or makes a claim to legal status in the United States. An expedited removal order issued by a DHS officer is equivalent to a removal order issued by an immigration judge.

Reinstatement of Final Removal Orders

The Reinstatement of Final Removal Orders, in the U.S immigration terminology, is the removal of an alien on the reinstatement of a prior removal order, where the alien departed the United States under an order of removal and illegally re-entered the United States (INA § 241(a)(5)). The alien may be removed without a hearing before an immigration judge.

Section 241(a)(5) of the INA permits DHS to reinstate final removal orders, without further hearing or review, for aliens who were removed or departed voluntarily under an order of removal and who illegally re-entered the United States.

Removal Proceedings

Aliens not immediately returned or processed for removal by a DHS officer, e.g. due to a fear of return or because the alien has applied for certain forms of adjustment of status, may be issued an NTA for an immigration hearing and may be transferred to ICE for a custody determination, which may result in detention or release on bond, orders of supervision, or orders of recognizance.

Removal hearings before an immigration court may result in a variety of outcomes including an order of removal; a grant of voluntary departure at the alien’s expense (considered a “return”); a grant of certain forms of relief or protection from removal, which could include adjustment to lawful permanent resident status; or termination of proceedings. Decisions of immigration judges can be appealed to the Board of Immigration Appeals.

The penalties associated with removal include not only the removal itself but also possible fines, imprisonment for up to ten years for those who fail to appear at hearings or who fail to depart, and a bar to future legal entry. The bar is permanent for aggravated felons and up to 20 years for certain other aliens.

The imposition and extent of these penalties depend upon the individual circumstances of the case.

Administrative Removal

It means the removal of an alien not admitted for permanent residence, or of an alien admitted for permanent residence on a conditional basis pursuant to section 216 of the INA, under a DHS order based on the determination that the individual has been convicted of an aggravated felony (INA § 238(b)(1)). The alien may be removed without a hearing before an immigration judge.