I.    INVESTIGATION AND APPREHENSION

      A)    Immigration Service Powers Prior to Arrest

             1)    Outside The Territorial Bounds of The United States

                    (a)   Pre-Inspection

                    (b)   Interdiction

                    (c)   Operation “Global Reach” And Alien Smuggling

                           (i)     Investigatory Stops For Identification

                           (ii)    Temporary Detention For Questioning            

             2)    Interior of The United State

                    (a)    Enforcing Restrictions on Employment

                    (b)   “Special Circumstances”

      B)    Arrests

             1)    Arrests Without A Warrant

             2)    Release on Bond or Personal Recognizance

      C)    Decision Not To Continue Removal Proceedings

II.   REMOVAL HEARING

      A)    Notice To Appear (NTA)

      B)    Participants In The Removal Hearing

             1)    Interpreter      

      C)    The Hearing

             1)    Conduct of The Hearing

             2)    Evidence

             3)    Ancillary Matters

                    (a)   Additional Charges

                    (b)   Designation of Country & Application For Relief

      D)    The Decision

             1)    Burden of Proof

             2)    Rendering The Decision

III.  REMOVAL HEARING FOR INADMISSIBLE NON-CITIZENS

IV.  EXPEDITED REMOVAL FOR AGGRAVATED FELONIES

V.   RELIEF FROM REMOVAL

      A)    Voluntary Departure

      B)    Cancellation of Removal

      C)    Section 212(C) Relief

      D)    Adjustment of Status 

      E)    Asylum

      F)    Withholding of Removal or Convention Against Torture

      G)    Temporary Protected Status

      H)    Stay of Removal

      I)     Parole

      J)     Registry

VI.  ESTOPPEL

VII. APPEALS

      A)    Motion To Reopen or Reconsider

      B)    Administrative Appeals (Board of Immigration Appeals (BIA))

             1)    Procedural Requirements

      C)    Appeals to The Circuit Court of Appeals

VIII. POST REMOVAL DETENTION

This is a brief discussion of the process which a non-citizen typically faces from the first encounter with the immigration authorities through the removal proceeding and the various forms of relief from removal.

The U.S. Immigration and Customs Enforcement (ICE) and the U.S. Customs and Border Protection (CBP), within the Department of Homeland Security (DHS), are the two main agencies that enforce immigration laws. Like all law enforcement agencies, ICE and CBP can and do exercise a great deal of prosecutorial discretion. They exercise this discretion in deciding where to focus investigative resources, whether to initiate removal proceedings against a particular individual, whether to detain a person after initiating removal proceedings (when detention is not mandatory), and whether to support or oppose a non-citizen’s request for relief from removal. Under INA § 242(g), added by the IIRIRA, decisions to “commence proceedings, adjudicate cases, or execute removal orders” are unreviewable.

Immigration authorities’ exercise of discretion was challenged in Reno v. American-Arab Anti-Discrimination Committee (Sup.Ct.1999) by a group of non-citizens who claimed they had been singled out for removal because of their membership in a politically unpopular group, the People’s Front for the Liberation of Palestine. A District Court initially enjoined the deportation of the plaintiffs, finding that they had been subject to selective prosecution. The U.S. Court of Appeals for the Ninth Circuit upheld the decision. The Supreme Court reversed, however, on the basis that § 242(g), enacted while the appeal was pending, precluded judicial review of the INS’ decision to commence proceedings.

Subsequent to that decision, the Immigration Commissioner published guidelines describing the factors that could warrant a favorable exercise of discretion (i.e., not to initiate proceedings against an individual). See 77 Interp.Rel. 1673. These factors include lawful permanent resident status; a lengthy residence in the U.S.; the (relatively minor) nature of any criminal conduct; humanitarian concerns such as family ties in the U.S. and medical conditions affecting the non-citizen or his or her family; lack of previous immigration violations; the likelihood of ultimately removing the individual; the person’s eligibility for other relief; and public opinion regarding the case, although this factor does not alone justify favorable exercise of discretion. These guidelines do not, however, create any enforceable legal rights in non-citizens.

I.  INVESTIGATION AND APPREHENSION

ICE and CBP use a variety of techniques to investigate the presence of removable non-citizens both in and coming to the United States. While ICE is primarily concerned with enforcement of immigration laws within the United States, CBP focuses on preventing illegal entries. Their current enforcement priorities are deterring illegal entries, locating and removing non-citizens who have committed crimes, penalizing employers who hire non-citizens without work authorization, prosecuting document fraud schemes, breaking up alien smuggling operations, and stopping terrorism. To achieve these goals, CBP inspects vehicles, persons, and belongings at the border and at certain fixed check-points both inside the border and in other countries. ICE uses roving patrols inside the U.S. to identify and detain suspected illegal entrants, audits and searches businesses alleged to unlawfully employ non-citizens, works with other law enforcement agencies to identify criminal non-citizens, and acts on information obtained through informants. This section examines the scope of ICE and CBP’s power to investigate and apprehend non-citizens.

A.  Immigration Service Powers Prior to Arrest

The INA provides that any immigration officer may, without a warrant:

(1) Interrogate any alien or person believed to be an alien as to his or her right to be or remain in the United States;

(2) Arrest any alien who in the officer’s presence or view is entering or attempting to enter the United States in violation of any law or if the officer has reason to believe the alien is in the United States in violation of any law and is likely to escape if not arrested;

(3) Board and search any vehicle to look for illegal aliens within a reasonable distance from the border. INA § 287(a).

The Code of Federal Regulations defines a reasonable distance from the border to be “100 air miles from any external boundary of the United States.” 8 C.F.R. § 287.1(a)(2). The statute appears to confer broad investigatory powers on immigration officials. The Supreme Court has held that evidence obtained in violation of the Fourth Amendment may be used in removal proceedings. Using a balancing test, the Court decided that the likely costs of excluding unlawfully obtained evidence outweigh the likely social benefits. Excluding such evidence would hinder the deliberately simple removal hearing system, would possibly suppress large amounts of information that had been obtained lawfully, and would “compel the courts to release from custody persons who would then immediately resume their commission of a crime through their continuing, unlawful presence in this country.” In the Court’s view, the social benefits from excluding such evidence would be minor because exclusion would have little deterrent effect on future Fourth Amendment violations by immigration officials. INS v. Lopez-Mendoza (Sup.Ct.1984).

1. Outside the Territorial Bounds of the United States

Ordinarily, the United States only has legal authority over persons and property contained within its territorial bounds, including its territorial waters. There are a few exceptions to this rule in the immigration context, including “pre-inspection” of non-citizens traveling to the U.S. from foreign ports, interdiction of undocumented migrants on the high seas, and cooperation with foreign law enforcement officials to investigate and prosecute alien smugglers and other human traffickers.

(a) Pre-Inspection

Congress has authorized the Secretary for Homeland Security, with the consent of the Secretary of State, to detail immigration officers for duty in foreign countries. INA § 103(a). Under that authority, CBP operates pre‑boarding inspection offices in Aruba, the Bahamas, Bermuda, Canada, and Ireland, to inspect non-citizens before their departure to the United States. Pre‑inspection occurs only when the vessel proceeds directly to this country and eliminates the need for inspection at the border.

(b) Interdiction

For several decades, U.S. law enforcement officials, primarily the Coast Guard, have been trying to prevent the entry of undocumented migrants by interdicting vessels in territorial waters and on the high seas. Those efforts gained attention in the early 1980s following the Mariel boatlift from Cuba and a mass exodus from Haiti. In 1981 the President of the United States, pursuant to an agreement with Haiti, issued Executive Order 12324, which gave the Coast Guard the authority to stop and board vessels coming from either the U.S. or Haiti. The Coast Guard would briefly interview the passengers and forcibly repatriate any who did not have an apparent claim for refugee status. In Haitian Refugee Center v. Gracey (D.C.Cir.1987), the court upheld the interdiction agreement, finding that it did not violate Due Process because non-citizens have no right to enter the U.S.

Nonetheless, Haitians continued coming to the U.S. During fall‑winter of 1991-92, more than 16,000 Haitians were intercepted on the high seas and taken to the U.S. Naval Base at Guantanamo Bay in Eastern Cuba. They were questioned as to whether they had prima facie claims to asylum status. Except for a very brief period the Haitians had no access to lawyers. They also had no right to appeal. The interdiction and interview procedures were challenged in federal court and the challenge was initially sustained. The U.S. Court of Appeals for the Eleventh Circuit, however, held in Haitian Refugee Center v. Baker (11th Cir.1992) that the Administrative Procedure Act does not give non-citizens who were detained on the high seas and, thus, had never presented themselves at a U.S. border, a right to judicial review of immigration decisions. Moreover, the court concluded that these individuals had no private right of action, unless they qualified for refugee status. Further, the court stated that the Refugee Center and the Haitians’ attorneys had no First Amendment claim for gaining access to the detainees. The Supreme Court denied certiorari. Ultimately, 35 percent of the Haitians were found to have prima facie claims and were transported to the U.S. for adjudication of their asylum cases. Almost all of the others were returned to Haiti.

In May 1992, the U.S. President ordered the Coast Guard to return any Haitians leaving their country in boats without an inquiry as to whether they qualified for asylum. The U.N. High Commissioner for Refugees and the Haitian Refugee Center challenged this measure as a violation of the U.S. government’s obligations under the Protocol relating to the Status of Refugees. In Sale v. Haitian Center Council, Inc. (Sup.Ct.1993), the Court again upheld the President’s executive order that authorized summary return of Haitians intercepted on the high seas without considering asylum claims. The court did not find any violation of Article 33 of the U.N. Protocol relating to the Status of Refugees or INA § 243(h)(now INA § 241(b)(3)), both of which prohibit the return of refugees to territories where their lives or freedom would be threatened. On April 4, 1994, Haitian President Aristide withdrew his government’s agreement to stopping Haitian boats on the high seas and President Clinton ordered that Haitians would no longer be subject to interdiction without individualized inquiry as to whether they qualify for refugee or asylum status.

In 1995, after years of sporadic discussions, the U.S. and Cuba entered an agreement allowing the U.S. government to interdict Cuban vessels and repatriate undocumented migrants from that country. Although such traffic has slowed since 1994, Cubans, Haitians, and others continue to try to reach the U.S. from the sea. In recent years, the Coast Guard has interdicted an increasing number of Ecuadorian and Chinese migrants. Ecuadorians travel by sea to Mexico and then try to enter the U.S. over land. Chinese migrants often travel by sea to Guam and then use fraudulent documents to obtain air passage to the U.S., or travel by air to South America and then by sea to the U.S. In addition to interdiction, the U.S. is now engaged in efforts to stop the smuggling rings that transport many of these migrants.

(c) Operation “Global Reach” And Alien Smuggling

In 1997, the INS established Operation “Global Reach” to work with law enforcement officials overseas to deter alien smuggling. The operation focuses on training officials and airline personnel to detect document fraud and on obtaining information regarding smuggling operations.

Smuggling of undocumented migrants is an international business believed to generate billions of dollars in annual revenues. Several smuggling disasters have attracted global attention. In 1993, a cargo ship carrying hundreds of undocumented Chinese migrants ran aground off the coast of New York; several of the passengers died trying to swim to shore. In January 2000, three Chinese migrants were found dead in a sealed container on board an ocean freighter docked in Seattle. In Britain that same year, 58 Chinese migrants died of suffocation in the back of a freight truck found in Dover port. The Chinese are not the only people engaging in this traffic, however: Mexican smuggling operations regularly bring Mexican and Central American migrants across the U.S. border, and other smuggling rings transport people from the Middle East and the former Soviet bloc to Western Europe. In an effort to address this problem, in December 2000, 79 countries signed the United Nations Protocol Against Smuggling Migrants. The Protocol, which has not yet entered into force, will provide for cooperative efforts among state parties, including exchange of information and interdiction of vessels suspected of smuggling migrants. The United States signed the protocol but has not yet become a state party.

CBP has the authority to stop all vehicles and persons at the border or its functional equivalent. See INA § 235. The Inspections division of CBP determines the admissibility of non-citizens arriving at designated ports of entry, while the Border Patrol works to prevent non-citizens from entering the U.S. through locations other than the authorized ports of entry and to apprehend non-citizens who have entered illegally. The Border Patrol accounts for approximately 95 percent of all apprehensions made by immigration authorities each year, and most of these occur near the U.S.-Mexico border.

Immigration officers may board and search any vehicle, including boats and aircraft, which they believe contains non-citizens. These searches may be legally conducted without a search warrant and can occur at the border or in the territorial waters of the United States. INA §§ 235, 287.

When non-citizens arrive at the border, CBP is authorized to inspect them to determine whether they may be admitted into the United States. INA § 235(a). A visa is usually essential for admission but it does not guarantee admission. After the inspection, which is extremely brief in most cases, the examining officer decides whether to admit the non-citizen. If the examining immigration officer determines that a non-citizen is not clearly and beyond doubt entitled to be admitted and the non-citizen has not requested asylum, the officer may summarily order the non-citizen’s removal. INA § 235(b)(1)(A). If a person’s admissibility is questionable, the officer may detain him or her for secondary inspection or defer inspection and parole the individual into the U.S. Inadmissible non-citizens may be allowed to withdraw their application for admission during inspection and thus escape the consequences of removal, unless they have presented false documents or have misrepresented a material fact in order to obtain a visa or gain admission to the U.S., in which case they will be removed. INA § 235(a)(4). Most inadmissible non-citizens are given the option of withdrawal.

If a non-citizen appears inadmissible, the officer may temporarily detain him or her for further inquiry. This procedure is customarily referred to as secondary inspection. Although secondary inspection involves an interrogation, the Fifth Circuit held in United States v. Henry (1979) that no Miranda‑type warning is necessary unless the questioning becomes custodial in nature. Applicants for admission have no right to counsel during inspection unless taken into custody on criminal charges. 8 C.F.R. § 292.5(b).

The immigration officer also may elect to release a non-citizen on parole pending further investigation, unless the non-citizen is inadmissible on criminal or national security grounds. See INA § 212(d)(5). Inspectors grant parole chiefly as a matter of practicality, because time constraints often prevent them from making a thorough investigation at the border. Immigration officers can also parole non-citizens who might be able to overcome inadmissibility, so that they can gather additional evidence or seek a waiver of the grounds of inadmissibility. These cases are referred to the appropriate district director for consideration. 8 C.F.R. § 235.2. Non-citizens who enter on parole have not been admitted, and may be subject to expedited removal proceedings if ultimately deemed inadmissible. The Board of Immigration Appeals held in Matter of Castellon (1981) that parole is purely discretionary and no administrative review of the decision is possible, although judicial review may lie in a district court for a declaratory judgment or habeas corpus action.

As a result of changes enacted by IIRIRA, immigration officers are authorized to remove many inadmissible non-citizens through a special process known as expedited removal. See § 9-2.3, infra. For example, if an inspections officer suspects that an individual is inadmissible on national security grounds, the officer may order that person removed without further inquiry, subject only to review by the Secretary of Homeland Security.

(i) Investigatory Stops for Identification

While CBP can search any person or vehicle at the border, its powers within the United States are more limited. INA § 287(a) authorizes immigration officers to board vehicles within a “reasonable distance” from the border solely to search for non-citizens. The Code of Federal Regulations defines a reasonable distance from the border to be “100 air miles from any external boundary of the United States.” 8 C.F.R. § 287.1(a)(2). Despite this seemingly broad statutory authority, the Supreme Court has held that this power is limited by the Fourth Amendment. In Almeida-Sanchez v. United States (Sup.Ct.1973), the Supreme Court held that a warrantless search of an automobile made by a roving patrol without probable cause or consent violated the non-citizen’s right to be free from unreasonable searches and seizures. The Court has, however, upheld the right of Border Patrol officers to make brief investigatory stops using either roving patrols or fixed checkpoints.

In its Fourth Amendment jurisprudence, the Court seeks to balance the government’s interest in law enforcement against the intrusion into the individual’s privacy. In the immigration context, the Court has consistently found that the government has a strong interest in preventing the illegal entry of non-citizens and that such entries cannot be entirely halted at the border. It has also found the intrusion caused by a brief investigatory stop to be modest. United States v. Brignoni-Ponce (Sup.Ct.1975). Hence, it has held that a roving patrol stopping a vehicle and questioning the occupants about their citizenship and immigration status does not violate the Fourth Amendment so long as the officer has a reasonable suspicion, based on the “totality of circumstances,” that the particular vehicle may contain non-citizens who entered the U.S. illegally. United States v. Arvizu (Sup.Ct. 2002). A suspicion is reasonable if it is based on articulable facts that, viewed in the light of the officer’s experience, give rise to an inference that criminal activity may be afoot, even if each individual fact viewed separately could have an innocent explanation. Id. Factors relevant to the existence of a reasonable suspicion include proximity to the border, traffic patterns, previous experience with undocumented non-citizens travelling in the area, the driver’s behavior, the appearance of the vehicle, and the officer’s experience in recognizing the characteristic appearance of foreign nationals. Brignoni-Ponce (Sup.Ct. 1975).

In addition, Border Patrol officers can make routine investigatory stops at reasonably located fixed check‑points even in the absence of any suspicion that the vehicle contains illegal aliens. The Court in United States v. Martinez-Fuerte (Sup.Ct.1976) reasoned that the intrusion on Fourth Amendment rights involved in such a stop is less severe than that caused by roving patrols since motorists are given advance warning of the stop which involves only the briefest detention - usually less than a minute. At such stops, most drivers are typically waived through, while a small percentage are stopped for further questioning regarding their citizenship and immigration status. The Court held that vehicles may not be searched at such stops without either the consent of the driver or probable cause to believe that the vehicle contains undocumented non-citizens. United States v. Ortiz (Sup.Ct.1975). When conducting the search, immigration officers may inspect only those areas of the car where a person could reasonably hide. In other words, the officer may not, as the Supreme Court observed in United States v. Ross (Sup.Ct.1982), open and search small pieces of luggage or other small containers and compartments to look for non-citizens. Border Patrol officers may also search for narcotics in the course of an immigration stop, but the Fifth Circuit has held that they may not prolong the search beyond the time needed to determine whether any immigration violations have occurred unless the officers have an individualized suspicion of wrongdoing. U.S. v. Portillo-Aguirre (5th Cir.2002).

The mechanisms the Border Patrol use inside the border include fixed checkpoints on major highways, roving patrols, video cameras, and electronic sensors on unpatrolled roads. These efforts are primarily focused on areas near the U.S.-Mexico border. The focus on entries from Mexico has raised the question of whether and to what extent a person’s Hispanic appearance may be used to justify an investigatory stop. In Brignoni-Ponce, the Court held that ethnic appearance could not alone create a reasonable suspicion of illegal activity. In dicta, however, the Court stated that ethnic appearance could justify a traffic stop when combined with other suspicious circumstances, as there was a significant probability that any particular individual of Hispanic appearance was a non-citizen. Twenty-five years later, noting that Hispanic persons had become a majority in many border areas, the Ninth Circuit held that ethnic appearance could no longer be considered a relevant factor. United States v. Montero-Camargo (9th Cir.2000). The court found that a characteristic shared by a substantial percentage of the population could not be the basis for a particularized suspicion of wrongdoing.

(ii) Temporary Detention for Questioning

One step between an investigatory stop for identification and an actual arrest is the forcible detention of a suspected non-citizen for interrogation. While the person questioned during an investigatory stop is free to leave, a person forcibly detained is not, even though he or she is not technically under arrest. Yam Sang Kwai v. INS (D.C.Cir.1969). Immigration officers may forcibly detain persons temporarily when the circumstances warrant a reasonable suspicion that they are illegally in the United States. The First Circuit rationalized in Navia-Duran v. INS (1977) that, since a forcible detention falls short of an actual arrest, no Miranda‑type warning is necessary before questioning a forcibly detained non-citizen. Other circuits endorse this view. Courts will consider, however, the voluntariness of any statement given by the non-citizen in the absence of a Miranda‑type warning. If immigration officials coerce the non-citizen, his or her right to Due Process, as guaranteed by the Fifth Amendment, may be violated. The court, as in Navia-Duran, may suppress any evidence obtained through coercion during the removal hearing.

2.  Interior of the United States

With the exception of areas within 100 miles of the external boundaries of the United States, CBP and ICE may not make investigatory stops using roving patrols or fixed check-points. They may, however, briefly detain non-citizens for interrogation. As with detentions made near the border, immigration authorities must have a reasonable belief that individuals are illegally present in this country before detaining them for interrogation.

(a) Enforcing Restrictions on Employment

ICE’s investigative efforts include searching businesses believed to employ unauthorized non-citizen workers. In the past, the target of these searches was the workers themselves. After the 1986 IRCA instituted civil and criminal penalties for employers, immigration authorities shifted their focus to them, in particular employers who commit human rights abuses or may be part of alien smuggling rings. ICE does, however, continue to search out and arrest undocumented workers employed at various businesses. See, e.g., Montero v. I.N.S. (2nd Cir.1997). The federal courts typically apply a relaxed Fourth Amendment standard to such searches. See, e.g., International Molders’ and Allied Workers Local Union No. 164 v. Nelson (9th Cir.1986). In INS v. Delgado (Sup.Ct.1984), the Supreme Court held that a factory search did not constitute a “seizure” of the workers, and thus did not violate their Fourth Amendment rights, where they were free to move about the factory during the search.

(b) “Special Circumstances”

Special circumstances may enlarge immigration officials’ authority. The D.C. Circuit Court of Appeals upheld the Attorney General’s authority, during the Iranian hostage crisis, to order nonimmigrant Iranian students to report to INS district offices and to demonstrate their lawful status. Narenji v. Civiletti (D.D.C.1979). Following the September 11, 2001, attacks on New York City, Washington, D.C., and Pennsylvania, the INS detained more than 700 non-citizens of Middle Eastern background on immigration violations. Citing national security concerns, the Service refused to release the names of the persons held, most of whom had committed only minor immigration offenses. As of this writing, immigration officials still have not stated how many were eventually removed. A court order requiring the Service to make this information public was stayed pending appeal. See Center for National Security Studies v. U.S. Department of Justice (D.D.C.2002). At the same time, the Attorney General’s Anti-Terrorism Task Force interviewed some 5000 students, tourists, and visitors from Middle Eastern countries, seeking information about terrorist activities. Although immigration violations were not the focus of these interviews, interviewers were instructed to notify immigration authorities if they suspected that any interviewee was in violation of status. 78 Interp.Rel. 1816. Local law enforcement officials have in the past participated in immigration enforcement activities. In Gonzalez v. City of Peoria (9th Cir.1983), the court found that the federal power over immigration does not necessarily preclude local enforcement of some provisions of the INA. State and local law agencies usually enforce immigration laws indirectly, however, by reporting persons who are suspected of violating immigration laws to immigration authorities.

A few provisions of the INA allow local law enforcement agencies to participate more directly in immigration enforcement. § 103(a)(8) allows the Secretary for Homeland Security to delegate any immigration powers he or she deems necessary to local law enforcement in the event of a “mass influx of aliens.” Section 103(c) authorizes the Secretary (formerly the Attorney General) to enter cooperative agreements with state and local agencies to enforce immigration laws. INA § 287(g)(1) further authorizes the Secretary to enter written agreements with any state or local officer or employee qualified to perform the functions of an immigration officer.

Although § 287(g)(1) was added to the INA in 1996 as part of the IIRIRA, it was not implemented until 2002. As part of its efforts to combat terrorism, the INS in 2002 established a pilot program with Florida's Regional Domestic Security Task Forces under which designated state and local law enforcement officers may perform immigration functions. Participating officers, supervised by immigration officials, can interrogate persons suspected of immigration violations, prepare Notices to Appear for signature by authorized immigration officials, and assist in pre- or post-arrest processing of non-citizens. 79 Interp.Rel. 1120.

B.  Arrests

1.  Arrests Without a Warrant

The INA empowers an immigration officer to arrest, without a warrant, “any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest....” INA § 287(a)(2). The Tenth Circuit in Roa-Rodriguez v. United States (1969) has limited this authority by holding that a belief that an individual intends to violate his or her entry conditions is insufficient for an arrest. The arresting officer must base the belief on something more than mere suspicion. After an arrest made without a warrant, immigration officials must follow specific administrative procedures. Once arrested, the non-citizen is taken before a different immigration officer for questioning unless no other officer is readily available. 8 C.F.R. § 287.3. If the examining officer determines that a prima facie case exists for removing the non-citizen, he or she refers the case to an immigration judge, orders the individual’s expedited removal, or takes other applicable action. 8 C.F.R. § 287.3.

Even though removal is a severe result, courts have concluded that removal proceedings are civil and not criminal in nature and hence, uniformly agree that a Miranda warning at the time of the arrest for removal is not required. After ICE makes the decision to proceed with removal (except in the case of non-citizens subject to expedited removal provision), 8 C.F.R. § 287.3 requires arresting officers to advise non-citizens of (1) the reason for the arrest; (2) their right to counsel at no expense to the government and the availability of any free legal service programs; and (3) their right to remain silent. While not technically a Miranda warning, in essence, arresting officers are required to advise non-citizens of their rights as defined by the Court in Miranda v. Arizona (Sup.Ct.1966). Although the statute requires officers to give the warning only after they decide to proceed with removal, the court may scrutinize any statements given by non-citizens before the warning to determine whether the statements were made voluntarily. In addition, non-citizens must be informed within 48 hours whether they will be detained further or released on bond or recognizance and whether a Notice to Appear and warrant of arrest will be issued. 8 C.F.R. § 287.3.

Immediately after the September 11, 2001, attacks, the INS published an interim rule permitting immigration officials to hold non-citizens in custody without charges for a “reasonable period of time” during emergency situations. 66 Fed.Reg. 48334. The Service stated that extra time was required to obtain necessary information from other law enforcement agencies. The USA Patriot Act subsequently authorized detention of suspected terrorists for up to seven days without charges. See INA §236A.

If ICE issues a warrant for arrest, it simultaneously issues a Notice to Appear before the immigration court to contest the removal. District directors, deputy district directors; assistant directors; officers in charge; chief, deputy, and assistant patrol agents; the Assistant Commissioner, Investigations; Institutional Hearing Program Directors; and port directors may issue an arrest warrant, but only if it is necessary to hold the non-citizen in custody. 8 C.F.R. § 287.5. Once issued, ICE must serve the warrant within a reasonable period of time. See United States v. Weaver (4th Cir.1967). Should ICE determine that a non-citizen is not subject to removal, any officer authorized to issue an arrest warrant may cancel it.

The Code of Federal Regulations also requires arresting officers to inform non-citizens at the time of their arrest of the reason for the arrest and to advise them of their rights. 8 C.F.R. § 287.8(c). Non-citizens who are not advised of these rights or fail to understand them may move to suppress evidence obtained because of the lack of warning. Navia-Duran v. INS (1st Cir.1977).

2.  Release on Bond or Personal Recognizance

ICE has discretion to release non-citizens it has taken into custody, unless they are subject to removal on criminal grounds or have been certified as suspected terrorists. Detention is mandatory for suspected terrorists and persons removable on certain grounds related to criminal conduct. INA §§ 236, 236A. Where detention is not mandatory, ICE may (1) continue to detain the arrested non-citizen pending removal proceedings; (2) release the non-citizen upon bond in the amount of not less than $1500 with security approved by the Secretary for Homeland Security and containing such conditions as the Secretary may prescribe; or (3) release the non-citizen on conditional parole. INA § 236(a). The INA also authorizes ICE to revoke the bond or parole at any time and rearrest the non-citizen under the original warrant. INA § 236(b).

In practice, as the Board observed in Matter of Patel (BIA 1976), non-criminal aliens are usually granted release on personal recognizance unless immigration authorities believe that they will not appear for subsequent hearings. The factors considered relevant by the Board in Patel to determine whether a non-citizen is a bail risk include prior arrests in this country, convictions in the person’s native country, illegal entry into the United States, participation in subversive activities, employment status, and the presence of relatives in the United States. The bail or parole decision is not subject to judicial review. INA § 236(e).

INA § 236(c) mandates detention until the removal hearing of any non-citizen convicted of an aggravated felony. The Ninth Circuit Court of Appeals held, in Kim v. Ziglar (9th Cir.2002), that this statute violates the constitutional right of due process when applied to permanent residents because it does not allow individual hearings to determine whether a particular person presents a flight risk. The Supreme Court upheld the statute, however, finding that detention for “the brief period necessary for ... removal proceedings” is an appropriate way to ensure that removable non-citizens will appear for their removal hearings and will not commit additional crimes before being removed. Demore v. Kim (Sup.Ct.2003).

C.  Decision Not to Continue Removal Proceedings

In some cases, ICE may decide not to continue removal proceedings after taking an individual into custody. Immigration officials must inform the individual of such a decision in writing. Having exercised its prosecutorial discretion in this manner, ICE should not reinitiate proceedings against the individual unless new facts come to light or there is a change in circumstances. See 77 Interp.Rel. 1673.

II.  REMOVAL HEARING

In general, persons who are subject to removal after being lawfully admitted and non-citizens who are present in the U.S. without having been admitted are entitled to a removal hearing. Non-citizens denied admission at a port of entry are not entitled to a removal hearing and are removed immediately unless they request asylum.

A. Notice to Appear

The removal process officially commences when a Notice to Appear is filed with an immigration court. 8 C.F.R. § 239.1. Only those officials with power to issue warrants (listed in 8 C.F.R. § 239.1) have the authority to issue a Notice to Appear and then, as the Supreme Court observed in Abel v. United States (Sup.Ct.1960), only on the basis of a prima facie showing of removability.

The INA lists the specific requirements for a Notice to Appear. It must state the nature of the proceeding, the legal authority under which the proceeding is conducted, the act or conduct alleged to be in violation of the law, the charges against the non-citizen, and the statutory provisions alleged to have been violated. INA § 239(a)(1). In addition, the Notice to Appear states that further proceedings will be held and notifies the non-citizen of the need to keep the government apprised of his or her address and the consequences of failing to do so. INA § 239(a)(1). The Notice must inform the non-citizen of his or her right to counsel and must include a list of free legal service programs available in the locale. The Court of Appeals in Montilla v. INS (2d Cir.1991) held that a failure to give the alien notice of these rights may result in a new hearing.

Before filing the Notice with the immigration court, ICE must serve it on the non-citizen. ICE may either deliver the notice by personal service or by registered mail to the non-citizen or the non-citizen’s “counsel of record.” INA § 239(a)(1). In practice, notice is usually served by mail. The INA requires all non-citizens to notify immigration authorities within ten days of any change of address. See § 8-2.2(c), supra. In the past, this requirement was not strictly enforced. In one case, the BIA held that mailing a Notice to Appear to a non-citizen’s last known address was not effective service of process where the non-citizen had failed to report an address change and the INS knew that the Notice had not reached the intended recipient. Matter of G- Y- R- (BIA 2001). After that decision, the INS began to enforce the reporting requirement more strictly and notice of the requirement is now given on most immigration forms. Consequently, mail to a non-citizen’s last known address should in the future serve as sufficient service of process.

After receiving a Notice to Appear, the non-citizen must immediately give ICE his or her current address and telephone number in order to receive written notice of scheduled proceedings. INA § 239(a)(1). A non-citizen who fails to appear at a scheduled hearing will be ordered removed in absentia if ICE establishes by “clear, unequivocal, and convincing evidence” that the individual is removable and that ICE either provided written notice of the proceeding or was not required to do so because the non-citizen did not provide a current address. INA § 240(b)(5). A person ordered removed in absentia after receiving oral notice of the proceedings in a language he or she understood is ineligible for most forms of discretionary relief for ten years, unless the failure to appear was due to exceptional circumstances. INA § 240(b)(7). If the failure to appear was due to exceptional circumstances, the non-citizen may move within 180 days to reopen proceedings. Non-citizens who did not receive written notice of the hearing at their address of record or did not appear because they were in custody at the time of the hearing may move to reopen at any time. INA § 240(b)(5). The Board of Immigration Appeals endorsed the fairness of this procedure in In re S (1957).

Sections 239 and 240 outline the basic requirements for the proceedings: (1) non-citizens must be given proper notice; (2) they may choose to be represented by counsel; (3) they shall have the opportunity to offer evidence in their behalf and examine evidence against them; (4) a decision to remove must be based upon “reasonable, substantial, and probative evidence.” INA §§ 239(a), 240(b)(4)(A), 240 (b)(4)(B), 240(c)(3).

B.  Participants in the Removal Hearing

Of course, the most obvious party to the proceedings is the non-citizen, whose rights will be discussed in a following subsection. The removal hearing also involves an immigration judge, the service counsel, the non-citizen’s counsel, an interpreter if necessary, and often witnesses.

In the past, the immigration judge was called an “inquiry officer,” and served as investigator, prosecutor, and judge. The judicial function was separated from the investigation and prosecution functions in a 1983 reorganization. Immigration judges and the Board of Immigration Appeals are part of the Executive Office for Immigration Review (EOIR), an office within the Department of Justice. See § 3-2.2, supra.

Immigration judges are selected by the Attorney General. The judges may conduct specified classes of proceedings, including removal hearings. INA § 101(b)(4). The INA authorizes the immigration judge to “conduct proceedings for deciding the inadmissibility or deportability [removability] of the alien, . . . [to] administer oaths, receive evidence, interrogate, examine, and cross-examine the alien and any witnesses, and . . . [to] decide whether an alien is removable from the Unit