Immigration Limited Proceedings in the United States
Limited Proceedings in relation to Immigration Courts
(information based on the DoJ Manual)
In general
Certain aliens can be removed from the United States without being placed into removal proceedings. However, in some circumstances, these aliens may be afforded limited proceedings, including credible fear review, reasonable fear review, claimed status review, asylum-only proceedings, and withholding-only proceedings.
Classes of aliens
The following aliens can be removed from the United States without being placed into removal proceedings. These aliens are afforded limited proceedings as described below.
Expedited removal under INA § 235(b)(1)
The following aliens are subject to “expedited removal” under INA § 235(b)(1):
- aliens arriving at a port of entry without valid identity or travel documents, as required, or with fraudulent documents
- aliens interdicted at sea (in international or U.S. waters) and brought to the United States
- aliens who have not been admitted or paroled into the United States and who have not resided in the United States for two years or more
- individuals paroled into the United States after April 1, 1997, and whose parole has since been terminated
Exceptions
The following aliens are not subject to expedited removal under INA § 235(b)(1):
- lawful permanent residents
- aliens granted refugee or asylee status
- aliens seeking asylum while applying for admission under the visa waiver program
- Cuban nationals arriving by air at a port of entry
- minors, unless they have committed certain crimes.
Limited proceedings afforded
As described below, aliens subject to expedited removal under INA § 235(b)(1) are afforded the following proceedings: if the Alien (person who is not a citizen or national of the United States) expresses a fear of persecution or torture, the Alien is placed into “credible fear proceedings,” as described below or if the Alien claims to be a United States citizen or a lawful permanent resident, or that he or she has been granted refugee or asylee status, the Alien is allowed a “claimed status review,” as described in below.
Expedited removal under INA § 238(b)
Aliens who are not lawful permanent residents and who have been convicted of aggravated felonies are subject to “expedited removal” under INA § 238(b). If such an alien expresses a fear of persecution or torture, the alien is placed into “reasonable fear proceedings.” See below.
Reinstatement of prior orders under INA § 241(a)(5)
Under INA § 241(a)(5), aliens who are subject to reinstatement of prior orders of removal are not entitled to removal proceedings. If such an alien expresses a fear of persecution or torture, the alien is placed into “reasonable fear proceedings.” See below.
Stowaways
If a stowaway expresses a fear of persecution or torture, he or she is placed into credible fear proceedings. See (in this American law platform, in relation to immigration courts and judges) INA § 235.
Others
In certain circumstances, the aliens listed below may be placed into asylum-only proceedings:
Custody in limited proceedings
An alien subject to limited proceedings may be detained during the proceedings. Immigration Judges have no jurisdiction over custody decisions for these aliens.
Credible fear proceedings
Credible fear proceedings involve stowaways and aliens subject to expedited removal under INA § 235(b)(1). See (in this American law platform, in relation to immigration courts and judges) above. If such an alien expresses a fear of persecution or torture to the Department of Homeland Security (DHS) immigration officer upon being detained by DHS or applying to enter the United States, the alien is interviewed by a DHS asylum officer who evaluates whether the alien possesses a credible fear of persecution or torture. See (in this American law platform, in relation to immigration courts and judges) generally INA § 235(b)(1)(B).
Credible fear standard
“Credible fear of persecution” means that there is a significant possibility that the alien can establish eligibility for asylum under INA § 208 or withholding of removal (“restriction on removal”) under INA § 241(b)(3). The credibility of the alien’s statements in support of the claim, and other facts known to the reviewing official, are taken into account. 8 C.F.R. §§ 208.30(e)(2), 1003.42(d). “Credible fear of torture” means there is a significant possibility that the alien is eligible for withholding of removal (“restriction on removal”) or deferral of removal under the Convention Against Torture pursuant to 8 C.F.R. §§ 208.16 or 208.17. 8 C.F.R. §§ 208.30(e)(3), 1003.42(d).
If the DHS asylum officer finds credible fear
Stowaways
If the DHS asylum officer finds that a stowaway has a credible fear of persecution or torture, the stowaway is placed in asylum-only proceedings before an Immigration Judge. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 208.30(f). In asylum-only proceedings, the stowaway can apply for asylum, withholding of removal (“restriction on removal”) under INA § 241(b)(3), and protection under the Convention Against Torture. See (in this American law platform, in relation to immigration courts and judges) below.
Aliens subject to expedited removal under INA § 235(b)(1)
If the DHS asylum officer finds that an alien subject to expedited removal under INA § 235(b)(1) has a credible fear of persecution or torture, the alien is placed in removal proceedings before an Immigration Judge. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 208.30(f). In removal proceedings, the alien has the same rights, obligations, and opportunities for relief as any other alien in removal proceedings. See (in this American law platform, in relation to immigration courts and judges) Hearings before Immigration Judges.
If the DHS asylum officer does not find credible fear
If the DHS asylum officer finds that the alien does not have a credible fear of persecution or torture, the alien may request that an Immigration Judge review this finding. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 208.30(g).
Credible fear review by an Immigration Judge
The credible fear review is conducted according to the provisions below. See (in this American law platform, in relation to immigration courts and judges) generally INA § 235(b)(1)(B), 8 C.F.R. § 1003.42.
Timing
The credible fear review must be concluded no later than 7 days after the date of the DHS asylum officer’s decision. If possible, the credible fear review should be concluded 24 hours after the decision.
Location
If possible, the credible fear review is conducted in person. However, because of the time constraints, the credible fear review may be conducted by video or telephone conference. See (in this American law platform, in relation to immigration courts and judges) Hearings by Video or Telephone Conference.
Representation
Prior to the credible fear review, the alien may consult with a person or persons of the alien’s choosing. In the discretion of the Immigration Judge, persons consulted may be present during the credible fear review. However, the alien is not represented at the credible fear review. Accordingly, persons acting on the alien’s behalf are not entitled to make opening statements, call and question witnesses, conduct cross examinations, object to evidence, or make closing arguments.
Record of Proceedings
DHS must give the complete record of the DHS asylum officer’s credible fear determination to
the Immigration Court. This record includes any notes taken by the DHS asylum officer. The Immigration Judge creates a record, which is kept separate from the Record of Proceedings in any subsequent Immigration Court proceeding involving the alien.
Conduct of hearing
A credible fear review is not as exhaustive or in-depth as an asylum hearing in removal proceedings. Rather, a credible fear review is simply a review of the DHS asylum officer’s decision. Either the alien or DHS may introduce oral or written statements, and the court provides an interpreter if necessary. Evidence may be introduced at the discretion of the Immigration Judge. The hearing is recorded. Parties should be mindful that all requests for continuances are subject to the statutory time limits.
If the Immigration Judge finds credible fear
Stowaways
If the Immigration Judge finds that a stowaway has a credible fear of persecution or torture, the stowaway is placed in asylum-only proceedings. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1208.30(g)(2)(iv)(C). In asylum-only proceedings, the stowaway can apply for asylum, withholding of removal (Arestriction on removal”) under INA § 241(b)(3), and protection under the Convention Against Torture. See (in this American law platform, in relation to immigration courts and judges) below.
Aliens subject to expedited removal under INA § 235(b)(1)
If the Immigration Judge finds that an alien subject to expedited removal under INA § 235(b)(1) has a credible fear of persecution or torture, the alien is placed in removal proceedings. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. §§ 1003.42(f), 1208.30(g)(2)(iv)(B). In removal proceedings, the alien has the same rights, obligations, and opportunities for relief, including the opportunity to apply for asylum, as any other alien in removal proceedings. See (in this American law platform, in relation to immigration courts and judges) Hearings before Immigration Judges.
If the Immigration Judge does not find credible fear
If the Immigration Judge does not find credible fear of persecution or torture, the alien is returned to DHS for removal. Neither party may appeal an Immigration Judge’s ruling in a credible fear review. However, after providing notice to the Immigration Judge, DHS may reconsider its determination that an alien does not have a credible fear of persecution. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1208.30(g)(2)(iv)(A).
Reasonable fear proceedings
Reasonable fear proceedings involve aliens subject to expedited removal under INA § 238 and aliens subject to reinstatement of prior orders of removal under INA § 241(a)(5). See (in this American law platform, in relation to immigration courts and judges) above. If such an alien expresses a fear of persecution or torture to the Department of Homeland Security (DHS) immigration officer, the alien is interviewed by a DHS asylum officer who evaluates whether the alien has a Areasonable fear of persecution or torture.” See generally 8 C.F.R. § 1208.31.
Reasonable fear standard
“Reasonable fear of persecution or torture” means a reasonable possibility that the alien would be persecuted on account of his or her race, religion, nationality, membership in a particular social group, or political opinion, or a reasonable possibility that the alien would be tortured if returned to the country of removal. The bars to eligibility for withholding of removal (“restriction on removal”) under INA § 241(b)(3) are not considered. 8 C.F.R. § 1208.31(c).
If the DHS asylum officer finds reasonable fear
If the DHS asylum officer finds that the alien has a reasonable fear of persecution or torture, the alien is placed in withholding-only proceedings before an Immigration Judge. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 208.31(e). In withholding-only proceedings, the alien can apply for withholding of removal (“restriction on removal”) under INA § 241(b)(3) and protection under the Convention Against Torture. See (in this American law platform, in relation to immigration courts and judges) below.
If the DHS asylum officer does not find reasonable fear
If the DHS asylum officer finds that the alien does not have a reasonable fear of persecution or torture, the alien may request that an Immigration Judge review this finding. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 208.31(f).
Reasonable fear review by an Immigration Judge
The reasonable fear review is conducted according to the provisions below. See (in this American law platform, in relation to immigration courts and judges) generally 8 C.F.R. § 1208.31.
Timing
In the absence of exceptional circumstances, the reasonable fear review is conducted within 10 days after the case is referred to the Immigration Court.
Location
If possible, the reasonable fear review is conducted in person. However, because of the time constraints, the reasonable fear review may be conducted by video or telephone conference. See (in this American law platform, in relation to immigration courts and judges) Hearings by Video or Telephone Conference.
Representation
Subject to the Immigration Judge’s discretion, the alien may be represented during the reasonable fear review at no expense to the government.
Record of Proceedings
DHS must file the complete record of the DHS asylum officer’s reasonable fear determination with the Immigration Court. This record includes any notes taken by the DHS asylum officer. The Immigration Judge creates a record, which is kept separate from the Record of Proceedings in any subsequent Immigration Court proceeding involving the alien.
Conduct of hearing
A reasonable fear review hearing is not as comprehensive or in-depth as a withholding of removal hearing in removal proceedings. Rather, it is a review of the DHS asylum officer’s decision. Either party may introduce oral or written statements, and the court provides an interpreter if necessary. Evidence may be introduced at the discretion of the Immigration Judge. The hearing is recorded. Parties should be mindful that all requests for continuances are subject to the statutory time limits.
If the Immigration Judge finds reasonable fear
If the Immigration Judge finds that the alien has a reasonable fear of persecution or torture, the alien is placed in withholding-only proceedings. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1208.31(g)(2). In withholding-only proceedings, the alien can apply for withholding of removal (Arestriction on removal”) under INA § 241(b)(3) and protection under the Convention Against Torture.
If the Immigration Judge does not find reasonable fear
If the Immigration Judge does not find a reasonable fear of persecution or torture, the alien is returned to DHS for removal. There is no appeal from an Immigration Judge’s ruling in a reasonable fear review. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1208.31(g)(1).
Claimed status review
If an individual is found by a Department of Homeland Security (DHS) immigration officer to be subject to expedited removal under INA § 235(b)(1), but claims to be a United States citizen or lawful permanent resident, or to have been granted asylum or admitted to the United States as a refugee, the DHS immigration officer attempts to verify that claim. If the claim cannot be verified, the individual is allowed to make a statement under oath. The case is then reviewed by an Immigration Judge in a “claimed status review.” See generally 8 C.F.R. § 1235.3(b)(5).
Timing
Claimed status reviews are scheduled as expeditiously as possible, preferably no later than 7 days after the case was referred to the Immigration Court and, if possible, within 24 hours. Claims to United States citi
zenship may require more time to permit the alien to obtain relevant documentation.
Location
If possible, the claimed status review is conducted in person. However, because of the time constraints, the claimed status review may be conducted by video or telephone conference. See (in this American law platform, in relation to immigration courts and judges) Hearings by Video or Telephone Conference.
Representation
Prior to the claimed status review, the individual subject to the review may consult with a person or persons of his or her choosing. In the discretion of the Immigration Judge, persons consulted may be present during the claimed status review. However, the individual subject to the review is not represented during the review. Accordingly, persons acting on his or her behalf are not entitled to make opening statements, call and question witnesses, conduct cross examinations, object to evidence, or make closing arguments.
Limited Proceedings in relation to Immigration Courts
(information based on the DoJ Manual)
In general
Certain aliens can be removed from the United States without being placed into removal proceedings. However, in some circumstances, these aliens may be afforded limited proceedings, including credible fear review, reasonable fear review, claimed status review, asylum-only proceedings, and withholding-only proceedings.
Classes of aliens
The following aliens can be removed from the United States without being placed into removal proceedings. These aliens are afforded limited proceedings as described below.
Expedited removal under INA § 235(b)(1)
The following aliens are subject to “expedited removal” under INA § 235(b)(1):
- aliens arriving at a port of entry without valid identity or travel documents, as required, or with fraudulent documents
- aliens interdicted at sea (in international or U.S. waters) and brought to the United States
- aliens who have not been admitted or paroled into the United States and who have not resided in the United States for two years or more
- individuals paroled into the United States after April 1, 1997, and whose parole has since been terminated
Exceptions
The following aliens are not subject to expedited removal under INA § 235(b)(1):
- lawful permanent residents
- aliens granted refugee or asylee status
- aliens seeking asylum while applying for admission under the visa waiver program
- Cuban nationals arriving by air at a port of entry
- minors, unless they have committed certain crimes.
Limited proceedings afforded
As described below, aliens subject to expedited removal under INA § 235(b)(1) are afforded the following proceedings: if the Alien (person who is not a citizen or national of the United States) expresses a fear of persecution or torture, the Alien is placed into “credible fear proceedings,” as described below or if the Alien claims to be a United States citizen or a lawful permanent resident, or that he or she has been granted refugee or asylee status, the Alien is allowed a “claimed status review,” as described in below.
Expedited removal under INA § 238(b)
Aliens who are not lawful permanent residents and who have been convicted of aggravated felonies are subject to “expedited removal” under INA § 238(b). If such an alien expresses a fear of persecution or torture, the alien is placed into “reasonable fear proceedings.” See below.
Reinstatement of prior orders under INA § 241(a)(5)
Under INA § 241(a)(5), aliens who are subject to reinstatement of prior orders of removal are not entitled to removal proceedings. If such an alien expresses a fear of persecution or torture, the alien is placed into “reasonable fear proceedings.” See below.
Stowaways
If a stowaway expresses a fear of persecution or torture, he or she is placed into credible fear proceedings. See (in this American law platform, in relation to immigration courts and judges) INA § 235.
Others
In certain circumstances, the aliens listed below may be placed into asylum-only proceedings:
Custody in limited proceedings
An alien subject to limited proceedings may be detained during the proceedings. Immigration Judges have no jurisdiction over custody decisions for these aliens.
Credible fear proceedings
Credible fear proceedings involve stowaways and aliens subject to expedited removal under INA § 235(b)(1). See (in this American law platform, in relation to immigration courts and judges) above. If such an alien expresses a fear of persecution or torture to the Department of Homeland Security (DHS) immigration officer upon being detained by DHS or applying to enter the United States, the alien is interviewed by a DHS asylum officer who evaluates whether the alien possesses a credible fear of persecution or torture. See (in this American law platform, in relation to immigration courts and judges) generally INA § 235(b)(1)(B).
Credible fear standard
“Credible fear of persecution” means that there is a significant possibility that the alien can establish eligibility for asylum under INA § 208 or withholding of removal (“restriction on removal”) under INA § 241(b)(3). The credibility of the alien’s statements in support of the claim, and other facts known to the reviewing official, are taken into account. 8 C.F.R. §§ 208.30(e)(2), 1003.42(d). “Credible fear of torture” means there is a significant possibility that the alien is eligible for withholding of removal (“restriction on removal”) or deferral of removal under the Convention Against Torture pursuant to 8 C.F.R. §§ 208.16 or 208.17. 8 C.F.R. §§ 208.30(e)(3), 1003.42(d).
If the DHS asylum officer finds credible fear
Stowaways
If the DHS asylum officer finds that a stowaway has a credible fear of persecution or torture, the stowaway is placed in asylum-only proceedings before an Immigration Judge. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 208.30(f). In asylum-only proceedings, the stowaway can apply for asylum, withholding of removal (“restriction on removal”) under INA § 241(b)(3), and protection under the Convention Against Torture. See (in this American law platform, in relation to immigration courts and judges) below.
Aliens subject to expedited removal under INA § 235(b)(1)
If the DHS asylum officer finds that an alien subject to expedited removal under INA § 235(b)(1) has a credible fear of persecution or torture, the alien is placed in removal proceedings before an Immigration Judge. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 208.30(f). In removal proceedings, the alien has the same rights, obligations, and opportunities for relief as any other alien in removal proceedings. See (in this American law platform, in relation to immigration courts and judges) Hearings before Immigration Judges.
If the DHS asylum officer does not find credible fear
If the DHS asylum officer finds that the alien does not have a credible fear of persecution or torture, the alien may request that an Immigration Judge review this finding. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 208.30(g).
Credible fear review by an Immigration Judge
The credible fear review is conducted according to the provisions below. See (in this American law platform, in relation to immigration courts and judges) generally INA § 235(b)(1)(B), 8 C.F.R. § 1003.42.
Timing
The credible fear review must be concluded no later than 7 days after the date of the DHS asylum officer’s decision. If possible, the credible fear review should be concluded 24 hours after the decision.
Location
If possible, the credible fear review is conducted in pe
rson. However, because of the time constraints, the credible fear review may be conducted by video or telephone conference. See (in this American law platform, in relation to immigration courts and judges) Hearings by Video or Telephone Conference.
Representation
Prior to the credible fear review, the alien may consult with a person or persons of the alien’s choosing. In the discretion of the Immigration Judge, persons consulted may be present during the credible fear review. However, the alien is not represented at the credible fear review. Accordingly, persons acting on the alien’s behalf are not entitled to make opening statements, call and question witnesses, conduct cross examinations, object to evidence, or make closing arguments.
Record of Proceedings
DHS must give the complete record of the DHS asylum officer’s credible fear determination to the Immigration Court. This record includes any notes taken by the DHS asylum officer. The Immigration Judge creates a record, which is kept separate from the Record of Proceedings in any subsequent Immigration Court proceeding involving the alien.
Conduct of hearing
A credible fear review is not as exhaustive or in-depth as an asylum hearing in removal proceedings. Rather, a credible fear review is simply a review of the DHS asylum officer’s decision. Either the alien or DHS may introduce oral or written statements, and the court provides an interpreter if necessary. Evidence may be introduced at the discretion of the Immigration Judge. The hearing is recorded. Parties should be mindful that all requests for continuances are subject to the statutory time limits.
If the Immigration Judge finds credible fear
Stowaways
If the Immigration Judge finds that a stowaway has a credible fear of persecution or torture, the stowaway is placed in asylum-only proceedings. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1208.30(g)(2)(iv)(C). In asylum-only proceedings, the stowaway can apply for asylum, withholding of removal (Arestriction on removal”) under INA § 241(b)(3), and protection under the Convention Against Torture. See (in this American law platform, in relation to immigration courts and judges) below.
Aliens subject to expedited removal under INA § 235(b)(1)
If the Immigration Judge finds that an alien subject to expedited removal under INA § 235(b)(1) has a credible fear of persecution or torture, the alien is placed in removal proceedings. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. §§ 1003.42(f), 1208.30(g)(2)(iv)(B). In removal proceedings, the alien has the same rights, obligations, and opportunities for relief, including the opportunity to apply for asylum, as any other alien in removal proceedings. See (in this American law platform, in relation to immigration courts and judges) Hearings before Immigration Judges.
If the Immigration Judge does not find credible fear
If the Immigration Judge does not find credible fear of persecution or torture, the alien is returned to DHS for removal. Neither party may appeal an Immigration Judge’s ruling in a credible fear review. However, after providing notice to the Immigration Judge, DHS may reconsider its determination that an alien does not have a credible fear of persecution. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1208.30(g)(2)(iv)(A).
Reasonable fear proceedings
Reasonable fear proceedings involve aliens subject to expedited removal under INA § 238 and aliens subject to reinstatement of prior orders of removal under INA § 241(a)(5). See (in this American law platform, in relation to immigration courts and judges) above. If such an alien expresses a fear of persecution or torture to the Department of Homeland Security (DHS) immigration officer, the alien is interviewed by a DHS asylum officer who evaluates whether the alien has a Areasonable fear of persecution or torture.” See generally 8 C.F.R. § 1208.31.
Reasonable fear standard
“Reasonable fear of persecution or torture” means a reasonable possibility that the alien would be persecuted on account of his or her race, religion, nationality, membership in a particular social group, or political opinion, or a reasonable possibility that the alien would be tortured if returned to the country of removal. The bars to eligibility for withholding of removal (“restriction on removal”) under INA § 241(b)(3) are not considered. 8 C.F.R. § 1208.31(c).
If the DHS asylum officer finds reasonable fear
If the DHS asylum officer finds that the alien has a reasonable fear of persecution or torture, the alien is placed in withholding-only proceedings before an Immigration Judge. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 208.31(e). In withholding-only proceedings, the alien can apply for withholding of removal (“restriction on removal”) under INA § 241(b)(3) and protection under the Convention Against Torture. See (in this American law platform, in relation to immigration courts and judges) below.
If the DHS asylum officer does not find reasonable fear
If the DHS asylum officer finds that the alien does not have a reasonable fear of persecution or torture, the alien may request that an Immigration Judge review this finding. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 208.31(f).
Reasonable fear review by an Immigration Judge
The reasonable fear review is conducted according to the provisions below. See (in this American law platform, in relation to immigration courts and judges) generally 8 C.F.R. § 1208.31.
Timing
In the absence of exceptional circumstances, the reasonable fear review is conducted within 10 days after the case is referred to the Immigration Court.
Location
If possible, the reasonable fear review is conducted in person. However, because of the time constraints, the reasonable fear review may be conducted by video or telephone conference. See (in this American law platform, in relation to immigration courts and judges) Hearings by Video or Telephone Conference.
Representation
Subject to the Immigration Judge’s discretion, the alien may be represented during the reasonable fear review at no expense to the government.
Record of Proceedings
DHS must file the complete record of the DHS asylum officer’s reasonable fear determination with the Immigration Court. This record includes any notes taken by the DHS asylum officer. The Immigration Judge creates a record, which is kept separate from the Record of Proceedings in any subsequent Immigration Court proceeding involving the alien.
Conduct of hearing
A reasonable fear review hearing is not as comprehensive or in-depth as a withholding of removal hearing in removal proceedings. Rather, it is a review of the DHS asylum officer’s decision. Either party may introduce oral or written statements, and the court provides an interpreter if necessary. Evidence may be introduced at the discretion of the Immigration Judge. The hearing is recorded. Parties should be mindful that all requests for continuances are subject to the statutory time limits.
If the Immigration Judge finds reasonable fear
If the Immigration Judge finds that the alien has a reasonable fear of persecution or torture, the alien is placed in withholding-only proceedings. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1208.31(g)(2). In withholding-only proceedings, the alien can apply for withholding of removal (Arestriction on removal”) under INA § 241(b)(3) and protection under the Convention Against Torture.
If the Immigration Judge does not find reasonable fear
If the Immigration Judge does not find a reasonable fear of persecution or torture, the alien is returned to DHS for removal. There is no appeal from an Immigration Judge’s ruling in a reasonable fear review. See (in this American law platform, in relation to immigr
ation courts and judges) 8 C.F.R. § 1208.31(g)(1).
Claimed status review
If an individual is found by a Department of Homeland Security (DHS) immigration officer to be subject to expedited removal under INA § 235(b)(1), but claims to be a United States citizen or lawful permanent resident, or to have been granted asylum or admitted to the United States as a refugee, the DHS immigration officer attempts to verify that claim. If the claim cannot be verified, the individual is allowed to make a statement under oath. The case is then reviewed by an Immigration Judge in a “claimed status review.” See generally 8 C.F.R. § 1235.3(b)(5).
Timing
Claimed status reviews are scheduled as expeditiously as possible, preferably no later than 7 days after the case was referred to the Immigration Court and, if possible, within 24 hours. Claims to United States citizenship may require more time to permit the alien to obtain relevant documentation.
Location
If possible, the claimed status review is conducted in person. However, because of the time constraints, the claimed status review may be conducted by video or telephone conference. See (in this American law platform, in relation to immigration courts and judges) Hearings by Video or Telephone Conference.
Representation
Prior to the claimed status review, the individual subject to the review may consult with a person or persons of his or her choosing. In the discretion of the Immigration Judge, persons consulted may be present during the claimed status review. However, the individual subject to the review is not represented during the review. Accordingly, persons acting on his or her behalf are not entitled to make opening statements, call and question witnesses, conduct cross examinations, object to evidence, or make closing arguments.
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